                                                                               FILED
                            NOT FOR PUBLICATION                                 JUL 22 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-50257

              Plaintiff - Appellee,               D.C. No. 3:12-cr-02304-AJB-1

  v.
                                                  MEMORANDUM*
FRANCISCO JAVIER LIZARRAGA-
ESPINOZA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                        Argued and Submitted June 5, 2014
                              Pasadena, California

Before: REINHARDT, FISHER, and MURGUIA, Circuit Judges.

       Defendant-appellant Francisco Javier Lizarraga-Espinoza appeals his

conviction after a jury trial under 8 U.S.C. § 1326(a) and (b) for illegal reentry

after removal. 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 9th Cir. R. 36-3.
      Lizarraga-Espinoza contends that his two removal orders–one from 1998

and one from 2000–are invalid and thus cannot serve as the basis for prosecution

under 8 U.S.C. § 1326. In order to collaterally attack a predicate removal order, a

defendant must demonstrate, among other things, that the removal order was

“fundamentally unfair.” 8 U.S.C. § 1326(d); see also United States v. Pallares-

Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). For a removal order to be

“fundamentally unfair,” the removal proceedings must have violated the

defendant’s due process rights in a manner that caused prejudice–meaning that

absent the due process violation some relief from removal would have been

plausible. United States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir.

2011); United States v. Garcia-Martinez, 228 F.3d 956, 959-60 (9th Cir. 2000).

      We assume without deciding that Lizarraga-Espinoza’s 1998 removal order

was invalid and cannot serve as the predicate removal order for his conviction.

However, we conclude that the 2000 removal order is a valid predicate for his

conviction. In 2000, Lizarraga-Espinoza sought admission into the United States

without valid documentation and by falsely claiming citizenship. An immigration

officer ordered him removed after an expedited removal proceeding. See 8 U.S.C.

§ 1225. Lizarraga-Espinoza now contends that he should have been treated as a

lawful permanent resident (LPR) in 2000 and thus should not have been subjected


                                         2
to an expedited removal proceeding. See 8 C.F.R. § 235.3(b)(5)(ii). He further

contends that such an error–having an expedited removal proceeding instead of a

formal hearing before an immigration judge–causes prejudice per se.

      First, Lizarraga-Espinoza offers no authority for the contention that a

defendant improperly denied a formal immigration hearing need not show

prejudice, and we have consistently required a showing of actual prejudice. See

Garcia-Martinez, 228 F.3d at 964. Second, Lizarraga-Espinoza can show no

prejudice from the entry of the removal order in 2000; regardless of the nature of

the proceedings afforded him, he had no plausible form of relief from that removal

order. He had been convicted in 1996 of a crime of violence and had been given a

suspended sentence of three years in jail. Thus, by 2000, Lizarraga-Espinoza was

an aggravated felon. See 8 U.S.C. § 1101(a)(43)(F). As an aggravated felon,

Lizarraga-Espinoza was ineligible for relief from removal even if he had been

treated as an LPR and placed in formal removal proceedings. See, e.g., United

States v. Sandoval-Orellana, 714 F.3d 1174, 1181 (9th Cir. 2013) (holding that the

district court correctly denied a motion to dismiss a § 1326 indictment where the

defendant “was ineligible for discretionary relief as an aggravated felon”); see

also 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated

felony at any time after admission is deportable.”). Because he cannot show that


                                          3
relief was plausible in 2000, Lizarraga-Espinoza cannot demonstrate that his 2000

removal order was fundamentally unfair. His challenge to his 8 U.S.C. § 1326

conviction thus fails.



      AFFIRMED.




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