     Case: 09-20828 Document: 00511395439 Page: 1 Date Filed: 02/28/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 28, 2011
                                     No. 09-20828
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HENRY CRUZ BARRAZA, also known as Henry Geo Barraza, also known as
Henry Cruz-Barraza, also known as Henry Garcia, also known as Henry
Geovavay Barraza, also known as Henry Geovarray Cruz Barraza,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-214-1


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Henry Cruz Barraza was convicted of illegal reentry after deportation
following a felony conviction. See 8 U.S.C. § 1326. He now appeals the district
court’s denial of his motion to dismiss the indictment, which was based on a
collateral challenge to the underlying orders of removal. See § 1326(d). We




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 09-20828 Document: 00511395439 Page: 2 Date Filed: 02/28/2011

                                   No. 09-20828

review the denial of a motion to dismiss an indictment novo. United States v.
Farias, 469 F.3d 393, 397 n.3 (5th Cir. 2006).
      To collaterally attack a prior order of removal in a criminal proceeding, the
alien must establish (1) that the removal hearing was fundamentally unfair, (2)
that the hearing effectively eliminated his right to judicial review of the removal
order, (3) that he was prejudiced by the procedural deficiencies, and (4) that he
exhausted any administrative remedies. United States v. Lopez-Ortiz, 313 F.3d
225, 229 (5th Cir. 2002). If the alien fails to establish one prong of this test, the
others need not be considered. Id. at 231.
      Cruz Barraza argues that the relevant reinstatements of his original
removal order were fundamentally unfair because immigration officials failed
to comply with regulations requiring that he receive a “credible fear interview”
regarding his claims that he had been persecuted and tortured when he was
returned to El Salvador. Cruz Barraza’s argument relies on United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260, 267-68 (1954), which held, in the context
of a habeas challenge to a deportation proceeding, that the alien had sufficiently
alleged a due process interest in having the INS follow its own regulations to at
least warrant a hearing on the issue. However, we have rejected an attempt to
apply Accardi in the criminal context. United States v. Calderon-Pena, 339 F.3d
320, 324-25 (5th Cir. 2003), panel opinion reinstated in relevant part by en banc
court, 383 F.3d 254, 255 n.1 (5th Cir. 2004) (en banc). We find Cruz Barraza’s
arguments against the application of Calderon-Pena in this case to be
unpersuasive. Because he has failed to establish fundamental unfairness, we
conclude that the district court did not err in denying the motion to dismiss the
indictment.
      Cruz Barraza also argues that the written judgment incorrectly stated
that he was convicted of violating § 1326(b)(2); he requests a remand to correct
the judgment. We will remand to the district court for the limited purpose of
correcting the judgment to reflect a conviction and sentence under § 1326(b)(1).

                                         2
   Case: 09-20828 Document: 00511395439 Page: 3 Date Filed: 02/28/2011

                              No. 09-20828

    AFFIRMED; REMANDED FOR LIMITED PURPOSE OF CORRECTION
OF JUDGMENT.




                                   3
