United States v. Martinez-Martinez

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 17 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-2654 D.C. No. Plaintiff - Appellee, 2:22-cr-00574-JJT-1 v. MEMORANDUM* JUNIOR STANDLY MARTINEZ- MARTINEZ, Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding Argued and Submitted September 12, 2024 Phoenix, Arizona Before: RAWLINSON and COLLINS, Circuit Judges, and FITZWATER, District Judge.** Junior Standly Martinez-Martinez (Martinez-Martinez), a citizen of Honduras, appeals from the district court’s denial of his motion to dismiss the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. indictment charging him with illegal reentry in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

“We review de novo a motion to dismiss an indictment under 8 U.S.C. § 1326 on the basis of a claimed due process defect in the predicate deportation proceeding.” United States v. De La Mora-Cobian, 18 F.4th 1141, 1145 (9th Cir. 2021) (citation omitted). “Mixed questions of law and fact . . . are also reviewed de novo, while the underlying facts are reviewed for clear error.” Id. (citations omitted).

1. Martinez-Martinez contends that the district court erroneously denied the motion to dismiss the indictment because “he [demonstrated] a due process right to collaterally attack the 1998 Removal Order.” “To prevail in a collateral attack on the underlying removal order in a motion to dismiss, [Martinez-Martinez] must, as a threshold matter, show that he exhausted his administrative remedies.”

United States v. Villavicencio-Burruel, 608 F.3d 556, 559 (9th Cir. 2010) (citations omitted); see also 8 U.S.C. § 1326(d).1

Martinez-Martinez has not met the first threshold requirement. Martinez- Martinez maintains that administrative remedies were unavailable to him because the withdrawal of his “appeal [was] the functional equivalent” of an invalid waiver.

However, in Villavicencio-Burruel, we held that, by “declin[ing] to exercise [the] right” to appeal, Villavicencio failed to “comply with § 1326(d)(1)’s exhaustion requirement.” 608 F.3d at 560. We concluded that failure to file an appeal was not “tantamount to [him] waiving his appeal rights . . . and does not excuse the nonexhaustion.” Id. Federal regulations in effect when Martinez-Martinez filed his withdrawal treated the withdrawal of an appeal the same as failure to file an appeal. See 8 C.F.R. § 3.4 (1999). Therefore, the reasoning of Villavicencio-Burruel forecloses Martinez-Martinez’s argument that the withdrawal of his appeal was the equivalent of an invalid waiver.

2. Contrary to Martinez-Martinez’s argument, he also failed to establish that he was deprived of an opportunity for judicial review. “Because he could have sought judicial review had he taken such an appeal, [Martinez-Martinez] was not deprived of the opportunity for judicial review and therefore did not satisfy § 1326(d)(2).” United States v. Portillo-Gonzalez, 80 F.4th 910, 920 (9th Cir. 2023) (alteration and internal quotation marks omitted). Thus, the district court did not err by denying the motion to dismiss the indictment because Martinez-Martinez

AFFIRMED.