UNITED STATES v. LARA UNZUETA (2021)

MEMORANDUM **

Appellant Miguel Andres Lara-Unzueta appeals the district court's denial of his motion to dismiss his indictment for illegal reentry. See 8 U.S.C. § 1326(a), (b)(2).¹ Lara-Unzueta argues that his underlying 1998 removal order was invalid because the Immigration Judge (“IJ”) erroneously rejected his request for a § 212(c) hearing for discretionary relief. See INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), superseded by statute on other grounds as stated in Nasrallah v. Barr, ––– U.S. ––––, 140 S. Ct. 1683, 207 L.Ed.2d 111 (2020). But Lara-Unzueta has not demonstrated that the deportation proceedings “improperly deprived [him] of the opportunity for judicial review.” 8 U.S.C. § 1326(d)(2). Thus, he cannot collaterally attack the underlying 1998 removal order.

To satisfy 8 U.S.C. § 1326(d)(2), a defendant “must show an actual or constructive inability to seek judicial review, related to an alleged error or obstacle in the deportation proceedings.” United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1133 (9th Cir. 2013). On appeal, however, Lara-Unzueta argues only that (1) the IJ erred; (2) the record as to his § 212(c) eligibility had not been developed because of the error; and (3) he did not understand the requirements for a § 1326 collateral attack at the time of his 1998 removal. None of these arguments demonstrate Lara-Unzueta was actually or constructively “foreclose[d]” from challenging the IJ's decision not to hold a § 212(c) hearing. See United States v. Mendoza-Lopez, 481 U.S. 828, 838, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), adopted by statute as stated in United States v. Gonzalez-Flores, 804 F.3d 920 (9th Cir. 2015). Lara-Unzueta did, in fact, appeal the IJ's § 212(c) determination to the Board of Immigration Appeals and could have sought judicial review of the Board's decision affirming Lara-Unzueta's ineligibility for statutorily relief.

Without the requisite showing under 8 U.S.C. § 1326(d)(2), Lara-Unzueta cannot collaterally attack his 1998 removal order.²

AFFIRMED.

FOOTNOTES

1.   We review de novo the denial of a motion to dismiss based on 8 U.S.C. § 1326(d). United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir. 2000) (citation omitted).

2.   Because we conclude Lara-Unzueta has not made the requisite showing under 8 U.S.C. § 1326(d)(2), we need not address the other arguments presented on appeal.