                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             NOV 23 2016
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.   15-50279

              Plaintiff-Appellee,                 D.C. No.
                                                  2:14-cr-00433-JAK-1
 v.

ERICKA ARELLANO ESCALANTE,                        MEMORANDUM*
AKA Erika Arellano, AKA Yvette
Arellano, AKA Ericka Arrellano,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                     Argued and Submitted November 7, 2016
                              Pasadena, California

Before: BERZON, CHRISTEN, and NGUYEN, Circuit Judges.

      Defendant Ericka Arellano Escalante appeals the denial of her motion to

dismiss the indictment against her for illegal reentry after removal in violation of 8


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291. We review de

novo the denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 when,

as here, the motion is based on a collateral attack on an underlying removal

proceeding. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.

2004).

         To attack collaterally an underlying removal order, a defendant must

demonstrate that “(1) [he] 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 [him] of the opportunity for

judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C.

§ 1326(d). A “removal order is fundamentally unfair if: (1) a defendant’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.

Valdez-Novoa, 780 F.3d 906, 913 (9th Cir. 2014) (alteration marks omitted)

(quoting Ubaldo-Figueroa, 364 F.3d at 1048).

      Without deciding whether Arellano’s conviction under California Health and

Safety Code section 11378 was for a controlled substance offense under the

Immigration and Nationality Act (INA), we hold that Arellano cannot show, as a




                                           2
matter of law, that she plausibly was prejudiced as a result of any alleged defects in

her removal proceeding.

      In the § 1326 prosecution, Arellano admitted to having been convicted in

2009 for a felony offense in violation of California Penal Code section 273.5(a). A

conviction under section 273.5(a) is a categorical crime of violence.

Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir. 2010); see also 18 U.S.C.

§ 16 (defining crime of violence). As Arellano also admitted that she received a

sentence of two years imprisonment for the offense, her section 273.5(a)

conviction constitutes an aggravated felony under the INA. See 8 U.S.C. §

1101(a)(43)(F) (defining “a crime of violence . . . for which the term of

imprisonment [is] at least one year” as an aggravated felony).

      Arellano therefore would have been statutorily ineligible for cancellation of

removal. See 8 U.S.C. § 1229b(b)(1)(A)–(B) (requiring an applicant to “ha[ve]

been a person of good moral character” “for a continuous period of not less than 10

years immediately preceding the date of [] application”); 8 U.S.C. § 1101(f)(8)

(barring a determination of good moral character for individuals convicted of an

aggravated felony). Arellano was similarly ineligible for pre-conclusion voluntary

departure. See 8 C.F.R. § 1240.26(b)(1)(i)(E) (noting that individuals convicted of

an aggravated felony are not eligible for voluntary departure); see also 8 U.S.C. §


                                          3
1229c(e) (“The Attorney General may by regulation limit eligibility for voluntary

departure under this section for any class or classes of aliens.”).

      Arellano thus cannot show that she was prejudiced in her removal

proceeding, because it is not plausible that she would have received either type of

discretionary relief. See United States v. Bustos-Ochoa, 704 F.3d 1053, 1056 (9th

Cir. 2012) (“To prove prejudice, [a defendant] must demonstrate that he had

plausible grounds for relief from deportation. . . . An alien who is barred from

receiving relief cannot meet this plausibility standard.” (internal quotation marks

and citation omitted)). Moreover, Arellano cannot establish that relief was

plausible solely because the government might have failed to “introduce noticeable

documentation of [the section 273.5(a)] aggravated felony conviction.” Id. at 1057.

      In sum, even if the immigration judge (IJ) incorrectly held that her

conviction under California Health and Safety Code section 11378 was a

controlled substances conviction, Arellano cannot show that she was prejudiced by

the IJ’s failure to advise her of discretionary forms of relief. See Bustos-Ochoa,

704 F.3d at 1057. Accordingly, Arellano’s motion to dismiss the indictment

against her under 8 U.S.C. § 1326 was properly denied.

      AFFIRMED.




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