USCA4 Appeal: 19-4769 Doc: 43 Filed: 12/21/2022 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4769

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EFRAIN AVILA-FLORES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., Senior District Judge. (3:18-cr-00152-JAG-1)

Submitted: August 30, 2022 Decided: December 21, 2022

Before HARRIS and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Geremy C. Kamens, Federal Public Defender, Caroline S. Platt, Alexandria, Virginia, Joseph S. Camden, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Aidan Grano-Mickelsen, Assistant United States Attorney, Matthew L. Cofer, Special Assistant United States Attorney, Alexandria, Virginia, Jessica D. Aber, United States Attorney, Heather Hart Mansfield, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 19-4769 Doc: 43 Filed: 12/21/2022 Pg: 2 of 3

PER CURIAM:

Efrain Avila-Flores, a native and citizen of Guatemala, pled guilty to one count of

illegal reentry after removal in violation of

(a), reserving his right to appeal

the denial of his second motion to dismiss his indictment. We affirm.

A collateral attack on a removal order in an illegal-reentry prosecution is allowed

where “failures of due process in an immigration proceeding . . . would make it

fundamentally unfair to rely on a removal order coming out of that proceeding.” United

States v. Moreno-Tapia,

(4th Cir. 2017). To successfully attack an

underlying removal order, a defendant must show the following: (1) he exhausted any

administrative remedies that may have been available to challenge the order of removal;

(2) he was effectively deprived of his right to judicial review of the removal order; and

(3) the entry of the removal order was fundamentally unfair.

(d); see

United States v. El Shami,

(4th Cir. 2005). An order is fundamentally

unfair if the defendant shows that “(1) his due process rights were violated by defects in

his underlying deportation proceeding, and (2) he suffered prejudice as a result of the

defects.” El Shami,

. In United States v. Fernandez Sanchez, No. 20-4061,

, at *5–6 (4th Cir. Aug. 23, 2022), we declined to decide whether we

review a district court’s ruling on a § 1326(d) motion to dismiss de novo, consistent with

El Shami,

, or whether we instead review the district court’s legal

conclusions de novo but its factual findings for clear error, consistent with United States v.

Lopez-Collazo,

(4th Cir. 2016). Here, as in Fernandez Sanchez, the

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result is the same under either standard, so we again need not decide which standard

applies. See

, at *6.

Avila disputes the district court’s finding that he failed to demonstrate that his

underlying deportation proceeding was fundamentally unfair, asserting that the IJ

improperly or inadequately advised him regarding the relief of voluntary departure, that he

was not given a requested bond hearing, that the IJ did not advise him of his procedural

rights, and that the IJ failed to properly maintain the record. However, Avila “had no due

process right to be advised of discretionary relief.” United States v. Herrera-Pagoada,

(4th Cir. 2021). Further, “due process requires, at a minimum, that an alien

be given (1) notice of the charges against him, (2) a hearing before an executive or

administrative tribunal, and (3) a fair opportunity to be heard.”

(internal

quotation marks and alteration omitted). We conclude that none of these rights were

compromised.

Finally, as the district court found, Avila failed to “link the actual

prejudice he claims to have demonstrated to the specific due process violation[s] at issue”

and demonstrate that “but for the [due process] errors complained of, there was a

reasonable probability that he would not have been deported.” Fernandez Sanchez,

, at *5 (internal quotation marks and emphasis omitted).

We accordingly affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

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