                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 15 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50322

                Plaintiff-Appellee,             D.C. No.
                                                8:18-cr-00002-DOC-1
 v.

VALENTIN FUENTES CARREON, AKA                   MEMORANDUM*
Valentin Carreon Fuentes, AKA Valentin
Fuentes Carrion, AKA Valentin Fuentes-
Carreon, AKA Valentin Fuentescarreon,
AKA Octavio Ortiz, AKA Martin Oscar
Perez, AKA Soriano Alberto Rojas,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                           Submitted August 13, 2019**
                              Pasadena, California

Before: CALLAHAN, FISHER,*** and CHRISTEN, Circuit Judges.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
      Defendant-Appellant Valentin Fuentes Carreon appeals the district court’s

denial of his motion to dismiss the indictment and appeals his conviction and 18-

month sentence for being an alien in the United States after deportation in violation

of 8 U.S.C. § 1326(a). Fuentes Carreon collaterally attacks his underlying removal

order on due process grounds.

      We have jurisdiction under 28 U.S.C. § 1291. “We review a collateral

attack to a deportation order de novo.” United States v. Lopez-Velasquez, 629 F.3d

894, 896 (9th Cir. 2010) (en banc). We affirm.1

      Section 1326(d) provides that “an alien may not challenge the validity of the

deportation order described in subsection (a)(1) . . . unless the alien demonstrates

that . . . the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(3);

see also United States v. Valdez-Novoa, 780 F.3d 906, 913 (9th Cir. 2015)

(appealing denial of motion to dismiss a § 1326 indictment on the basis that the

underlying removal order was invalid). The fundamentally unfair prong is a two-

part inquiry requiring that “(1) [the alien’s] due process rights were violated by

defects in his underlying deportation proceeding, and (2) he suffered prejudice as a

result of the defects.” United States v. Rojas-Pedroza, 716 F.3d 1253, 1263 (9th

Cir. 2013) (alteration in original) (quoting United States v. Ubaldo-Figueroa, 364



      1
        The facts are familiar to the parties and are restated here only as necessary
to resolve the issues on appeal.

                                          2
F.3d 1042, 1048 (9th Cir. 2004)). Due process requires an immigration judge (IJ)

to “inform an alien of his ‘apparent eligibility’ for forms of relief such as voluntary

departure.” Valdez-Novoa, 780 F.3d at 913 (citing 8 C.F.R. § 1240.11(a)(2)).

      Eligibility for relief is “apparent” when “the record, fairly reviewed by an

individual who is intimately familiar with the immigration laws[,] . . . raises a

reasonable possibility that the petitioner may be eligible for relief.” Rojas-

Pedroza, 716 F.3d at 1263 (alteration in original) (quoting Lopez-Velasquez, 629

F.3d at 896). The “inquiry ‘focuse[s] on whether the factual circumstances in the

record before the IJ suggest that an alien could be eligible for relief,’” id.

(alterations in original) (quoting Lopez-Velasquez, 629 F.3d at 900), but because

“‘IJs are not expected to be clairvoyant’ . . . an IJ need not advise an alien of

possible relief when the record lacks such a factual basis.” Id. (quoting Lopez-

Velazquez, 629 F.3d at 900).

      Here, the record supports that it was not “apparent” to the IJ that Fuentes

Carreon was eligible for voluntary departure. At Fuentes Carreon’s removal

proceeding, the IJ asked him, “And so, you’ve never been granted voluntary

departure?” Fuentes Carreon answered, “When I was deported, I believe it was

voluntary deportment.” The government affirmed: “It looks like he has a voluntary

departure from March 25th, 2010 through San Ysidro.” The parties’ assertions that

Fuentes Carreon had been previously deported indicated that he was not eligible


                                           3
for voluntary departure. Thus, the record lacks any factual basis to suggest

eligibility. As a result, “[u]ntil the alien himself or some other person puts

information before the judge that makes such eligibility apparent,” the IJ’s duty to

advise the alien of relief “does not come into play.” Lopez-Velazquez, 629 F.3d at

900 (quoting Moran-Enriquez v. I.N.S., 884 F.2d 420, 422 (9th Cir. 1989)). There

was no defect in the underlying 2015 removal proceeding.



      AFFIRMED.2




      2
        We grant Fuentes Carreon’s unopposed motions (Dkt. Nos. 30, 34) to file
his reply brief late. We deny Fuentes Carreon’s motion to take judicial notice
(Dkt. No. 13).

                                           4
