                                                                              FILED
                            NOT FOR PUBLICATION                               APR 17 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50072

               Plaintiff - Appellee,             D.C. No. 3:11-cr-01750-BTM-1

 v.
                                                 MEMORANDUM*
OMAR DOMINGUEZ-VALENCIA,

               Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                       Argued and Submitted February 3, 2015
                                Pasadena, California

Before: PREGERSON and NGUYEN, Circuit Judges and WHALEY,** Senior
District Judge.

  Omar Dominguez-Valencia appeals his conviction following a bench trial and

sentence for



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert H. Whaley, Senior District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
attempted entry after deportation, in violation of 8 U.S.C. § 1326. We have

jurisdiction under 28 U.S.C. § 1291. We affirm.

       1. The district court did not err in denying Dominguez-Valencia’s motion

under 8 U.S.C. § 1326(d) to dismiss the indictment. A claim that a defect in a

previous removal proceeding prevents reliance on the final removal order in a later

8 U.S.C. § 1326 proceeding is reviewed de novo. United States v. Reyes-Bonilla,

671 F.3d 1036, 1042 (9th Cir. 2012). We review the district court’s factual findings

for clear error. Id.

       A defendant seeking to collaterally attack a removal order must show: (1) he

exhausted his administrative remedies; (2) the deportation proceedings improperly

denied him judicial review; and (3) entry of the removal order was fundamentally

unfair. 8 U.S.C. § 1326(d). We have held that an underlying removal order is

fundamentally unfair “when the deportation proceeding violated the alien’s due

process rights and the alien suffered prejudice as a result.” Reyes-Bonilla, 671 F.3d

at 1043 (quoting United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir.

2010)). Due process requires the immigration judge to “expressly and personally

inform the alien that he has the right to appeal” and the waiver of this right must be

“considered and intelligent.” United States v. Ubaldo-Figueroa, 364 F.3d 1042,

1048-49 (9th Cir. 2004). The district court correctly concluded that Dominguez-

Valencia’s waiver of his right to appeal was considered and intelligent.
Dominguez-Valencia was also expressly advised of this right two separate times on

the same day and validly waived his right. Dominguez-Valencia’s motion to

dismiss his indictment for illegal reentry was properly denied because he failed to

exhaust his administrative remedies under 8 U.S.C. § 1326(d).

      Assuming Dominguez-Valencia had satisfied the first two prongs of 8

U.S.C. § 1326(d) as he claims, he cannot establish the required prejudice. Pursuant

to Lopez-Cardona v. Holder, 662 F.3d 1110 (9th Cir. 2011), Dominguez-Valencia

was removable as charged. See also United States v. Ramos-Medina, 706 F.3d 932,

936-37 (9th Cir. 2013) (“Our decisions in United States v. Becker and Lopez-

Cardona…, establish that first-degree burglary under California Penal Code § 459

is categorically a crime of violence and thus an ‘aggravated felony’ for the

purposes of the INA”) (citations omitted).

      The district court also correctly concluded that there was no due process

violation stemming from the alleged failure of the immigration judge to advise

Dominguez-Valencia of all available forms of relief. Where the record before an

immigration judge fairly raises a “reasonable possibility that the petitioner may be

eligible for relief,” the immigration judge must advise the petitioner of the

potential relief options. United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th

                                          3
Cir. 2010) (quoting Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir. 1989)).

The immigration judge is not expected to be “clairvoyant,” and “the record before

[the immigration judge] must fairly raise the issue.” United States v. Muro-Inclan,

249 F.3d 1180, 1183 (9th Cir. 2001) (quoting Moran-Enriquez, 884 F.2d at 422).

The immigration judge properly informed Dominguez-Valencia of his apparent

eligibility for two forms of relief. Dominguez-Valencia claims that the immigration

judge should have advised him of a third option for relief: a procedural mechanism

that would have allowed him to pursue adjustment of status from Mexico after his

deportation.

      Assuming the immigration judge violated Dominguez-Valencia’s due

process rights by not informing him of this procedural mechanism, Dominguez-

Valencia cannot establish the required prejudice. Where an immigration judge fails

to advise an alien of apparent eligibility for relief, “the alien must still establish

prejudice under the second prong of §1326(d)(3).” United States v. Rojas-Pedroza,

716 F.3d 1253, 1263 (9th Cir. 2013). “Where the relevant form of relief is

discretionary, the alien must make a ‘plausible’ showing that the facts presented

would cause the Attorney General to exercise discretion in his favor.” Id. (quoting

United States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir. 2011)). For the

Attorney General to grant discretionary relief, Dominguez-Valencia would have to

show that he bears the burden of hardships that are “exceptional and extremely
unusual.” 8 C.F.R. § 212.7(d). As the district court correctly concluded, the facts

and circumstances of Dominguez-Valencia’s case do not meet this burden. See

Muro-Inclan, 249 F.3d at 1184.

      2. We affirm Dominguez-Valencia’s sentence without prejudice. The parties

agree that in light of the Supreme Court’s holding in Descamps v. United States,

133 S.Ct. 2276 (2013), Dominguez-Valencia’s 16-level enhancement was

improper and that he must be resentenced. Because Dominguez-Valencia has

already been removed from the United States, we take the approach of United

States v. Aguilar-Reyes, 723 F.3d 1014 (9th Cir. 2013), and affirm his sentence

without prejudice to a later request for resentencing when he is present in the

United States or has waived his right to be present.

      AFFIRMED IN PART, AFFIRMED WITHOUT PREJUDICE IN

PART.




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