                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 30 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-50072

              Plaintiff-Appellee,                DC No. CR 16-02163 MMA

 v.
                                                 MEMORANDUM*
RAFAEL MATA-JIMENEZ,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                    Michael M. Anello, District Judge, Presiding

                            Submitted January 7, 2019**
                               Pasadena, California

Before:      TASHIMA and WATFORD, Circuit Judges, and ZOUHARY,***
             District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
      ***
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
          Defendant Rafael Mata-Jimenez (“Mata-Jimenez”) appeals the district

court’s denial of his motion to dismiss an indictment charging him with illegal

reentry after deportation under 8 U.S.C. § 1326. We have jurisdiction under 28

U.S.C. § 1291. We review the district court’s decision de novo, United States v.

Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir. 2012), and we affirm.

          Mata-Jimenez, a native and citizen of Mexico, entered a conditional guilty

plea to illegal reentry under 8 U.S.C. § 1326(a) and (b) after the district court

denied his motion to dismiss the indictment. Mata-Jimenez contends that the

district court should have granted his motion to dismiss the indictment under 8

U.S.C. § 1326(d) because the underlying removal order violated his due process

rights.

          To succeed in challenging the validity of an underlying removal order under

§ 1326(d), a defendant must demonstrate that: (1) he exhausted any available

administrative remedies; (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). To

satisfy the third requirement, a defendant must show that his “due process rights

were violated by defects in the underlying deportation proceeding” and that he




                                            2
“suffered prejudice as a result of the defects.” United States v. Becerril-Lopez, 541

F.3d 881, 885 (9th Cir. 2008).

      Because demonstrating prejudice is a necessary and indispensable element to

Mata-Jimenez’s challenge under § 1326(d), his challenge must fail. Mata-Jiminez

was convicted of an aggravated felony which negates any prejudice. See United

States v. Alvarado-Pineda, 774 F.3d 1198, 1201–02 (9th Cir. 2014) (“As a general

matter, a defendant who has been convicted of an aggravated felony cannot show

that he was prejudiced by defects in his underlying proceedings.”). Prior to his

2015 removal order, Mata-Jimenez was convicted of felony infliction of a corporal

injury on a spouse under California Penal Code § 273.5(a) and sentenced to five

years’ imprisonment. This Circuit has held that a conviction under § 273.5(a) is

categorically a crime of violence under 18 U.S.C. § 16(a). See Banuelos-Ayon v.

Holder, 611 F.3d 1080, 1086 (9th Cir. 2010) (applying the categorical approach

and holding that Cal. Penal Code § 273.5(a) is a categorical match to 18 U.S.C. §

16(a)). A conviction under 18 U.S.C. § 16(a) with a term of imprisonment of “at

least one year” is an aggravated felony under the Immigration and Nationality Act

(“INA”). See 8 U.S.C. § 1101(a)(43)(F) (defining an “aggravated felony” as

including “a crime of violence (as defined in section 16 of Title 18, but not

including a purely political offense) for which the term of imprisonment [is] at


                                          3
least one year”). Because Mata-Jimenez was convicted under § 273.5, a

categorical match to a crime of violence as defined by 18 U.S.C. § 16(a), and

sentenced to five years’ imprisonment, his conviction constitutes an aggravated

felony under the INA. Consequently, he cannot show prejudice under § 1326(d)

and his collateral challenge fails. Alvarado-Pineda, 774 F.3d at 1201–02.

      Accordingly, the district court correctly denied Mata-Jimenez’s motion to

dismiss the indictment.

      AFFIRMED.




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