United States v. Juan Brisuela Aldana

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 8 2022

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50036

Plaintiff-Appellee, D.C. No. 2:18-cr-00460-PA-1 v.

MEMORANDUM* JUAN JAVIER BRISUELA ALDANA, AKA Juan Javier Brizuela, AKA Juan Brizuela Aldana,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding Argued and Submitted February 7, 2022 Pasadena, California

Before: LIPEZ,** TALLMAN, and LEE, Circuit Judges.

Juan Javier Brisuela Aldana appeals the dismissal of his collateral attack upon his conviction for illegal reentry. 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Brisuela Aldana argues that the district court erred in denying his motion to dismiss the indictment under § 1326(d) because his due process rights were violated in the underlying immigration proceedings in which he was ordered removed in absentia. “We review de novo the denial of a motion to dismiss an indictment under 8 U.S.C. § 1326 when the motion is based on alleged due process defects in an underlying deportation proceeding.” United States v. Vasquez-Gonzalez, 901 F.3d 1060, 1065 (9th Cir. 2018) (quoting United States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014)).

To collaterally attack the validity of a prior removal order in this context, the noncitizen must show that: “(1) the alien 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); see United States v. Palomar-Santiago, 141 S. Ct. 1615, 1622 (2021).

Brisuela Aldana failed to show that he has exhausted administrative remedies. An order of removal in absentia may be rescinded “upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a).” 8 U.S.C. § 1229a(b)(5)(C)(ii) (emphasis added). Brisuela Aldana demonstrated his ability to seek such relief when, in 2010, he filed a motion to reopen on the grounds contemplated in § 1229a(b)(5)(C)(ii), but then withdrew the motion. Where a person voluntarily abandons a petition for review, he fails to exhaust an available remedy. See Noriega- Lopez v. Ashcroft, 335 F.3d 874, 878 (9th Cir. 2003).

Therefore, Brisuela Aldana does not satisfy the first requirement of § 1326(d) that he exhausted administrative remedies, but he is free to file a motion to reopen “at any time.” 8 U.S.C. § 1229a(b)(5)(C)(ii).

AFFIRMED.