NOT FOR PUBLICATION
D.C. No. 3:16-cr-00883-MMA-1 MEMORANDUM Appeal from the United States District Court for the Southern District of California
Michael M. Anello, District Judge, Presiding Submitted August 6, 2018 Pasadena, California Before: HAWKINS, M. SMITH, and CHRISTEN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). --------
Marbin Rene Reyes-Ruiz appeals his conviction for attempted illegal reentry in violation of 8 U.S.C. § 1326 through a collateral challenge to the validity of a prior removal order. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
"A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has the right to bring a collateral attack challenging the validity of his underlying removal order, because that order serves as a predicate element of his conviction." United States v. Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017) (per curiam). A defendant successfully brings a collateral attack when he demonstrates that: (1) he has "exhausted any administrative remedies that may have been available to seek relief against the order;" (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).
In this circuit, if a defendant "was not convicted of an offense that made him removable under the [Immigration and Nationality Act] to begin with, he is excused from proving the first two requirements." Ochoa, 861 F.3d at 1015. "An order is 'fundamentally unfair' under (d)(3) if '(1) [a defendant's] due process rights were violated by defects in [the] underlying deportation proceeding, and (2) [the defendant] suffered prejudice as a result of the defects.'" Id. at 1019 (Graber, J., concurring) (alterations in original) (quoting United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir. 2000)).
In this case, even if Reyes-Ruiz's prior removal order was invalid, he does not demonstrate that he suffered prejudice as a result of that potential defect. Although we may presume prejudice in some cases where, but for the government's misclassification of an underlying felony, the defendant was not otherwise removable, see Ochoa, 861 F.3d at 1015 (noting that fundamental unfairness exists where a lawful permanent resident defendant's prior conviction was improperly categorized as a crime of violence), that presumption is not applicable here because Reyes-Ruiz did not have any lawful status in the United States at the time he was first removed. Notably, Reyes-Ruiz does not argue that he would have been entitled to relief from removal if he had received a hearing before an immigration judge. Because prejudice cannot be presumed, and has not been shown, Reyes-Ruiz has not established that his original removal was "fundamentally unfair."