     Case: 13-50794      Document: 00512691470         Page: 1    Date Filed: 07/09/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 13-50794                                  FILED
                                  Summary Calendar                             July 9, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RUBEN CASTELAN-JAIMES, also known as Ruben Jaimes Castelan, also
known as Ruben Castelon-Jaimes, also known as Ruben Cruz, also known as
Ruben Castellan,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:13-CR-111-1


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Ruben Castelan-Jaimes appeals the district court’s denial of his motion
to dismiss the indictment. He contends that the Board of Immigration Appeals
(BIA) did not have the statutory authority to order his removal in the first
instance because the Immigration Judge (IJ) had found that he was not
removable. He asserts that the removal order violated his due process rights


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-50794

and may not be used to prove the prior deportation element of the illegal
reentry offense.
      This court reviews the denial of a motion to dismiss an indictment and
the underlying constitutional claims de novo. United States v. Villanueva-
Diaz, 634 F.3d 844, 848 (5th Cir. 2011). An alien prosecuted for illegal reentry
under 8 U.S.C. § 1326 may collaterally attack the underlying deportation
order. See United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). He
must establish that (1) the prior deportation proceeding was fundamentally
unfair; (2) the hearing effectively eliminated his right to challenge the hearing
by means of judicial review; (3) the procedural deficiencies actually prejudiced
him. United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002); see
§ 1326(d) (requires the alien to demonstrate that (1) the alien exhausted
administrative remedies; (2) the deportation proceeding deprived the alien of
the opportunity for judicial review; and (3) the entry of the order was
fundamentally unfair). If the alien fails to establish one prong of the three-
part test in Lopez-Ortiz, the others need not be considered. United States v.
Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003).
      Although Castelan-Jaimes is correct that the BIA does not have the
authority to order the removal of an alien in the first instance, see James v.
Gonzales, 464 F.3d 505, 513-14 (5th Cir. 2006), the instant case is procedurally
distinguishable from James. James involved a timely petition for review of a
BIA order. The district court determined that the BIA’s removal order in the
instant case was voidable but not void because Castelan-Jaimes did not file a
petition for review in this court and this court did not set aside the BIA’s
removal order as in James.
      Further, Castelan-Jaimes has not made the requisite showing to attack
the removal order collaterally. First, he has not shown that his due process



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                                 No. 13-50794

rights were violated as he received notice of the original charge against him; a
hearing before an executive or administrative tribunal; and a fair opportunity
to be heard. See Lopez-Ortiz, 313 F.3d at 230. The BIA issued notice of its
March 14, 2003, decision on reconsideration to Castelan-Jaimes’s immigration
lawyer as required by the BIA’s regulations when an alien is represented by a
lawyer. See United States v. Villanueva-Diaz, 634 F.3d 844, 851-52 (5th Cir.
2011). Therefore, Castelan-Jaimes received the process that was due to him
from the Government.       See id. at 851-52.    Under those circumstances,
Castelan-Jaimes’s deportation proceeding was fundamentally fair even though
he did not personally receive notice of the BIA’s decision on reconsideration.
See id. at 851-52.
      Even assuming arguendo that his attorney’s failure to notify him of the
BIA’s decision on reconsideration could support a claim of lack of fundamental
fairness, Castelan-Jaimes cannot establish prejudice. “A showing of prejudice
means that there was a reasonable likelihood that but for the errors
complained of the defendant would not have been deported [or removed].”
Mendoza-Mata, 322 F.3d at 832 (internal quotation marks and citation
omitted).   Castelan-Jaimes has not shown that there was a reasonable
likelihood that but for the alleged errors he would not have been removed or
that he would have been entitled to any specific relief from removal. Castelan-
Jaimes’s only defense was that the INS did not show that he used a firearm in
his conviction for brandishing a weapon, which made it a removable offense
under 8 U.S.C. § 1227(a)(2)(C). On reconsideration, the BIA found that the
criminal information stated that the weapon used in the offense was a firearm.
Castelan-Jaimes does not argue that he did not use a firearm or that he had
specific evidence to establish that the weapon was not a firearm. He has also
failed to present legal authority or evidence to establish that he would have



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                                 No. 13-50794

been entitled to specific relief from removal, such as adjustment of status
through his legal permanent resident wife, withholding of removal, protection
under the Convention Against Torture, and voluntary departure. Speculation
that Castelan-Jaimes would not have been removed does not suffice to
establish prejudice.   See Villanueva-Diaz, 634 F.3d at 852.       Further, the
decision concerning whether to grant voluntary departure is discretionary, and
deportation errors involving discretionary relief do not violate due process. See
8 U.S.C. § 1229c(b); Lopez-Ortiz, 313 F.3d at 231.
      Because Castelan-Jaimes failed to satisfy the requirements for
challenging the BIA’s removal order collaterally, the July 28, 2003 removal
order may permissibly serve as a basis for his conviction under § 1326. See
United States v. Lopez-Vasquez, 227 F.3d 476, 485 (5th Cir. 2000). Therefore,
the district court did not err in denying Castelan-Jaimes’s motion to dismiss
the indictment. See id. at 485-86.
      AFFIRMED.




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