                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             AUG 28 2018
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.   16-50494

              Plaintiff-Appellee,                 D.C. No.
                                                  3:16-cr-00883-MMA-1
 v.

MARBIN RENE REYES-RUIZ,                           MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                            Submitted August 6, 2018**
                               Pasadena, California

Before: HAWKINS, M. SMITH, and CHRISTEN, Circuit Judges.

      Marbin Rene Reyes-Ruiz appeals his conviction for attempted illegal reentry

in violation of 8 U.S.C. § 1326 through a collateral challenge to the validity of a

prior removal order. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


      *
             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).
      “A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has

the right to bring a collateral attack challenging the validity of his underlying

removal order, because that order serves as a predicate element of his conviction.”

United States v. Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017) (per curiam). A

defendant successfully brings a collateral attack when he demonstrates that: (1) he

has “exhausted any administrative remedies that may have been available to seek

relief against the order;” (2) “the deportation proceedings at which the order was

issued improperly deprived the alien of the opportunity for judicial review;” and

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

      In this circuit, if a defendant “was not convicted of an offense that made him

removable under the [Immigration and Nationality Act] to begin with, he is

excused from proving the first two requirements.” Ochoa, 861 F.3d at 1015. “An

order is ‘fundamentally unfair’ under (d)(3) if ‘(1) [a defendant’s] due process

rights were violated by defects in [the] underlying deportation proceeding, and (2)

[the defendant] suffered prejudice as a result of the defects.’” Id. at 1019 (Graber,

J., concurring) (alterations in original) (quoting United States v. Garcia-Martinez,

228 F.3d 956, 960 (9th Cir. 2000)).

      In this case, even if Reyes-Ruiz’s prior removal order was invalid, he does

not demonstrate that he suffered prejudice as a result of that potential defect.


                                           2
Although we may presume prejudice in some cases where, but for the

government’s misclassification of an underlying felony, the defendant was not

otherwise removable, see Ochoa, 861 F.3d at 1015 (noting that fundamental

unfairness exists where a lawful permanent resident defendant’s prior conviction

was improperly categorized as a crime of violence), that presumption is not

applicable here because Reyes-Ruiz did not have any lawful status in the United

States at the time he was first removed. Notably, Reyes-Ruiz does not argue that

he would have been entitled to relief from removal if he had received a hearing

before an immigration judge. Because prejudice cannot be presumed, and has not

been shown, Reyes-Ruiz has not established that his original removal was

“fundamentally unfair.”

      AFFIRMED.




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