                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 08 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50238

              Plaintiff - Appellee,              D.C. No. 3:09-cr-03590-BTM-1

  v.
                                                 MEMORANDUM *
IVAN CONTRERAS-LOPEZ,

              Defendant - Appellant.



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

                        Argued and Submitted May 3, 2011
                              Pasadena, California

Before: GOODWIN and WARDLAW, Circuit Judges, and COGAN, District
Judge.**

       Following a conditional guilty plea, Ivan Contreras-Lopez (“Contreras”)

appeals his conviction for being a deported alien found in the United States without

permission in violation of 8 U.S.C. § 1326. Contreras contends that the district court

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Brian M. Cogan, U.S. District Judge for the Eastern
District of New York, sitting by designation.
should have granted his motion to dismiss the indictment because it was based on a

prior removal order that was entered in violation of his due process right to counsel,

inherently prejudicing his ability to obtain immigration relief. We have jurisdiction

under 28 U.S.C. § 1291 and review de novo a claim that a defect in a prior removal

proceeding precludes reliance on the final removal order in a subsequent § 1326

proceeding. United States v. Ramos, 623 F.3d 672, 679 (9th Cir. 2010).

      To successfully bring a collateral attack against a prior removal order, an alien

must demonstrate that: “(1) the alien 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). “Under our case law, a predicate removal order satisfies the condition of

being ‘fundamentally unfair’ for purposes of § 1326(d)(3) when the deportation

proceeding violated the alien’s due process rights and the alien suffered prejudice as

a result.” United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010) (citing

United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2003)).

      As the government concedes, the district court correctly found that Contreras’s

waiver of his right to counsel was invalid and that his removal proceedings therefore




                                          2
violated his right to due process. See United States v. Ahumada-Aguilar, 295 F.3d

943, 947–50 (9th Cir. 2002); Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008).

      Nonetheless, Contreras’s collateral attack fails to satisfy § 1326(d)(3) because

he has not established that he was prejudiced as a result of his invalid waiver of the

right to counsel. See Ramos, 623 F.3d at 683–84. In a separate opinion we held that

prejudice could not be presumed based on such a violation of an alien’s right to

counsel when an alien has been convicted of an aggravated felony. United States v.

Reyes-Bonilla, No. 10-50361, __ F.3d __, slip op. at 1173 (9th Cir. Feb. 6, 2012)

(“We therefore hold that in order to mount a successful collateral attack on a prior

removal order under § 1326(d), an alien who was convicted of an aggravated felony

and was not properly advised of his right to counsel or did not waive this right must

show that he was actually prejudiced by this due process violation.”).

      While we left open the possibility that prejudice could be presumed where an

alien was affirmatively prevented from exercising his right to representation, id., this

is not such a case. Contreras has made no argument that he had plausible grounds for

relief at the time of his removal proceedings. Ramos, 623 F.3d at 684 (noting that to

establish prejudice a defendant need establish “only that there were ‘plausible grounds

for relief,’” quoting United States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir.

2003)). And because Contreras was convicted of an aggravated felony, he is ineligible


                                           3
for any rebuttable presumption of prejudice. Reyes-Bonilla, No. 10-50361, slip op.

at 1173. Accordingly, the district court correctly denied his motion to dismiss the

indictment.

      AFFIRMED.




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