                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 7 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50072

                Plaintiff-Appellee,             D.C. No.
                                                3:16-cr-00427-JLS-1
 v.

JOSE MARAVILLA-LEON,                            MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                  Janis L. Sammartino, District Judge, Presiding

                       Argued and Submitted July 10, 2018
                              Pasadena, California

Before: FISHER,** WATFORD, and FRIEDLAND, Circuit Judges.

      Defendant Jose Maravilla-Leon was convicted of illegal reentry into the

United States under 8 U.S.C. § 1326, which prohibits an alien from reentering after

he has been deported or removed. Maravilla appeals the District Court’s denial of

his motion to dismiss the information. He attacks the removal order underlying his


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
conviction, arguing that his attorney in the removal proceedings was ineffective

and that his waiver of appeal rights was invalid. We affirm.

      “A defendant charged with illegal reentry under 8 U.S.C. § 1326 has a Fifth

Amendment right to collaterally attack his removal order because the removal

order serves as a predicate element of his conviction.” United States v. Ubaldo-

Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). The collateral attack succeeds if

the alien shows that entry of the underlying removal order was “fundamentally

unfair,” 8 U.S.C. § 1326(d)(3)—that is, that it violated due process rights and the

alien “suffered prejudice as a result,” Ubaldo-Figueroa, 364 F.3d at 1048 (quoting

United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1988).1 We review

this issue de novo, and the District Court’s underlying factual findings are

reviewed for clear error. United States v. Ramos, 623 F.3d 672, 679-80 (9th Cir.

2010).

      The statute permits the defendant to collaterally attack only “the validity of

the deportation order.” 8 U.S.C. § 1326(d). Therefore, “due process rights to

assistance of counsel do not extend beyond the fairness of the [deportation] hearing

itself.” Balam-Chuc v. Mukasey, 547 F.3d 1044, 1050 (9th Cir. 2008). “[I]n order

to find ineffective assistance of counsel . . . the legal services must be rendered



1
  There are two other statutory requirements for a successful collateral attack on a
removal order. Neither is at issue here.

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‘while proceedings were ongoing.’” Id. (quoting Lara-Torres v. Ashcroft, 383 F.3d

968, 974 (9th Cir. 2004), amended sub nom. Lara-Torres v. Gonzales, 404 F.3d

1105 (9th Cir. 2005)).

      Maravilla argues that his lawyer rendered ineffective assistance both in

connection with a 2013 U-visa application and during the removal proceedings.

However, we are precluded from taking into account counsel’s deficient

performance in connection with the 2013 U-visa petition. Balam-Chuc, 547 F.3d at

1050. We have “reject[ed] [an] . . . attempt to cast . . . an expansive and amorphous

Fifth Amendment due process right that encompasses legal assistance which does

not undermine the fairness of the actual [removal] process itself.” Lara-Torres, 383

F.3d at 975, as amended, 404 F.3d at 1105. Ineffective assistance in filing a visa

petition before the initiation of removal proceedings is not cognizable under

§ 1326(d), even where failure to obtain the visa later leads to removal. Balam-

Chuc, 547 F.3d. at 1050-51.

      Therefore, we need not decide whether Maravilla’s attorney’s assistance in

2013 meets the ineffectiveness standard. We do note, however, that Maravilla was

represented exceedingly poorly. His somewhat unusual situation was not well

explained, and supporting documents did not meet the statutory requirements and

had expired. Here, as in Balam-Chuc, the attorney’s failings led to “terrible

consequences for [Maravilla] and his family.” Id. at 1051. And here, as there, we


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are constrained to rule that “the Fifth Amendment simply does not apply to the

preparation and filing of a petition that does not relate to the fundamental fairness

of an ongoing [removal] proceeding.” Id.

      As for the renewed attempt to file a U-visa petition in 2015 once removal

proceedings had begun, we cannot conclude that Maravilla’s lawyer was

ineffective, because she could not have done anything more to affect the outcome.

Maravilla argues that he meets the statutory requirements for a U-visa because in

2007—before his federal drug conviction—he was standing nearby when his

brother was murdered, and he has been and will be helpful to law enforcement in

its investigation of the crime. See 8 U.S.C. § 1101(a)(15)(U)(i). But as part of the

U-visa petition, an alien is required to provide a certification by law enforcement

that the statutory criteria are met. 8 C.F.R. § 214.14(c)(2)(i). The sheriff’s office

provided such a certification in 2012, which Maravilla’s lawyer attached to the

ultimately-rejected 2013 U-visa petition.2 However, in 2015, the sheriff’s office

refused to provide another certification. A sergeant later wrote a letter explaining

that the denial was not only based on the prior failed U-visa application, but also


2
  The 2012 law enforcement certification failed to identify Maravilla as a crime
victim, instead saying that his deceased brother was the victim of a murder. It also
did not explain how Maravilla had suffered substantial physical or mental abuse.
Maravilla argues that these deficiencies were the result of his lawyer’s ineffective
assistance, because she failed to provide the sheriff with the necessary information.
As we have explained, however, the lawyer’s ineffectiveness in connection with
the 2013 U-visa application is not cognizable under 8 U.S.C. § 1326(d).

                                           4                                     17-50072
on the fact that Maravilla “did not meet the federal guidelines for a U-visa as he

was not a direct victim, bystander victim or an indirect victim,” and on the fact that

Maravilla was “going through the federal court process for drug trafficking and

was currently in final deportation status.”

      Maravilla argues that his lawyer’s ineffective assistance with the 2013

U-visa petition doomed the 2015 U-visa efforts. However, the District Court made

a factual finding that the real “impediment in obtaining relief” was “the [sheriff’s]

determination that [Maravilla] was not a victim.” That finding is not clearly

erroneous. The sheriff’s letter said that the earlier failed U-visa application was one

reason that he refused to provide a law enforcement certification, but the

determination that Maravilla was not a victim was sufficient. Thus, Maravilla’s

inability to obtain the needed certification in 2015 was not caused by ineffective

assistance of counsel.

      Maravilla also collaterally attacks his underlying removal order on the basis

of two waivers of appeal rights, which he argues were invalid: his right to appeal

the 2013 U-visa denial, and his right to appeal the 2015 removal order. He argues

that these waivers were not knowing and voluntary because no one explained his

rights to him.

      To show a knowing, voluntary waiver of appeal rights, the Government must

establish that those rights were explained and that the defendant clearly and


                                          5                                     17-50072
personally waived them. United States v. Estrada-Torres, 179 F.3d 776, 781 (9th

Cir. 1999), overruled on other grounds by United States v. Rivera-Sanchez, 247

F.3d 905 (9th Cir. 2001). In addition to an invalid waiver, there must also be

prejudice. Ubaldo-Figueroa, 364 F.3d at 1048.

      We do not consider Maravilla’s waiver of his right to appeal the 2013 U-visa

denial, because the due process protection embodied in § 1326(d) does not

encompass visa petitions filed before removal proceedings begin. See Lara-Torres,

383 F.3d at 975; Balam-Chuc, 547 F.3d at 1050-51.

      With regard to Maravilla’s waiver of his right to appeal the 2015 removal

order, there was no prejudice. To obtain a U-visa, Maravilla needed a law

enforcement certification. As discussed, the District Court’s factual finding—that

Maravilla would not have obtained a certification because he was not a victim—is

not clearly erroneous. While the court made this finding to support its conclusion

that there was no ineffective assistance of counsel, the finding also supports the

conclusion that Maravilla was not prejudiced by his waiver of appeal rights.

Without a U-visa or any viable claim in removal proceedings, appeal from the

2015 removal order would have been futile.

      AFFIRMED.




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