Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARTIN RUBIO-MUNOZ, Defendant-Appellant.
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARTIN RUBIO-MUNOZ, Defendant-Appellant.
MEMORANDUM*
Martin Rubio-Munoz appeals from his conviction after a bench trial for illegal reentry after deportation in violation of 8 U.S.C. § 1326, and the revocation of his supervised release arising from a prior conviction. Rubio argues the district court erred by denying his motion to dismiss the indictment after he collaterally attacked his prior expedited removal orders, alleging a deprivation of due process. “This court reviews de novo a denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 when the motion is based on an alleged deprivation of due process in the underlying removal proceedings. The district court's factual findings are reviewed for clear error.” United States v. Garcia-Gonzalez, 791 F.3d 1175, 1179 (9th Cir. 2015) (citation and internal quotation marks omitted). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
“To sustain a challenge to an indictment (or information) under § 1326, a defendant must demonstrate that (1) he exhausted the administrative remedies available for seeking relief from the predicate removal order; (2) the deportation proceedings ‘improperly deprived [him] of the opportunity for judicial review’; and (3) the removal order was ‘fundamentally unfair.’ ” United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (alteration in original) (quoting 8 U.S.C. § 1326(d)). Only the third requirement is at issue here. See 8 U.S.C. § 1225(b)(1)(C); Raya-Vaca, 771 F.3d at 1202 (“[T]he statute governing expedited removal proceedings afforded Raya-Vaca no opportunity for administrative or judicial review.”). “To satisfy the third prong—that the order was fundamentally unfair—the defendant bears the burden of establishing both that the ‘deportation proceeding violate[d] [his] due process rights' and that the violation caused prejudice.” Id. at 1201–02 (alterations in original) (quoting United States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir. 1994)).
The district court concluded that Rubio did not meet his burden to establish a due process violation, finding it implausible that the officers interviewing Rubio in two different expedited removal interviews recorded the same wrong answer about any pending petitions. The district court found that the officers properly created records of Rubio's statements, advised Rubio of the charges of removal against him, and reviewed the sworn statement with him. See 8 C.F.R. § 235.3(b)(2)(i) (requiring immigration officers conducting expedited removal proceedings to “create a record of the facts of the case and statements made by the alien ․ , have the alien read (or have read to him or her) the statement ․ ,[and] advise the alien of the charges against him or her”); see also Raya-Vaca, 771 F.3d at 1204 (holding that “any failure to inform Raya-Vaca of the charge against him and to provide him the opportunity to review the sworn statement constituted a violation of Raya-Vaca's due process rights”). Reviewing all the evidence in the record, we conclude the district court did not clearly err by crediting the testimony of the two interviewing officers. See Easley v. Cromartie, 532 U.S. 234, 242 (U.S. 2001) (holding that clear error requires a reviewing court be “left with the definite and firm conviction that a mistake has been committed” (citation and internal quotation marks omitted)).
AFFIRMED.
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: No. 15-50292
Decided: May 12, 2017
Court: United States Court of Appeals, Ninth Circuit.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)