Unreported / Non-Citable
Background
Luis Antonio Tzun-Magaña was convicted in the Northern District of California of illegal reentry, in violation of 8 U.S.C. § 1326(a). He had moved to dismiss the indictment, contending that defects in his earlier removal proceedings invalidated the charge, and the district court denied the motion. He appealed, and a three-judge panel decided the case without oral argument. A person charged with unlawful reentry ordinarily cannot collaterally attack the underlying removal order. Section 1326(d) allows an exception only if he shows that he exhausted available administrative remedies, that the proceedings improperly deprived him of judicial review, and that entry of the order was fundamentally unfair. The panel treated each requirement as mandatory.
Fundamental unfairness requires a Fifth Amendment due process violation plus prejudice, meaning the violation prevented the defendant from presenting plausible grounds for relief. Tzun-Magaña pointed to his counsel's performance and to omissions by the immigration judge. He claimed prejudice from lost eligibility for voluntary departure, which he tied to a U visa application, and he argued the government had forfeited its aggravated felony point by not raising it in the district court.
The Court’s Holding
The Ninth Circuit affirmed in an unpublished memorandum. It did not decide whether counsel or the immigration judge actually violated due process. Assuming a violation, it held that Tzun-Magaña could not show prejudice because he lacked plausible grounds for relief: he was categorically ineligible for voluntary departure. The panel relied on circuit authority, including United States v. Bustos-Ochoa, for the rule that an alien barred from receiving relief cannot meet the plausibility standard.
The bar arose because his California robbery conviction is an aggravated felony, matching the generic theft offense listed in the statute, under circuit precedent. The panel noted that the prejudice inquiry does not ask whether an incorrect reading of the law could have produced a windfall for the defendant. It also rejected his forfeiture objection, explaining that claims, not arguments, are deemed waived or forfeited, so the aggravated felony point was properly considered even though it was not raised in the district court.
His other prejudice theories also failed. He identified no other ground for relief he would have pursued before the immigration judge or on appeal. His U visa theory depended on winning voluntary departure. And even if he had been eligible, he did not show that obtaining it was more than possible or conceivable. The denial of the motion to dismiss was affirmed, leaving the conviction in place.
Key Takeaways
- A defendant seeking to dismiss a § 1326 indictment on the basis of a flawed removal order must satisfy all three requirements of § 1326(d), including fundamental unfairness.
- Fundamental unfairness requires prejudice, meaning plausible grounds for relief that the alleged violation prevented the defendant from presenting.
- Under this panel's reasoning, a defendant categorically barred from relief, such as voluntary departure because of an aggravated felony, cannot show prejudice.
- The panel considered the aggravated felony bar despite the government's failure to raise it in the district court, because arguments are not forfeited the way claims are.
- A showing of mere possibility or conceivability of obtaining relief does not satisfy the prejudice prong.
Why It Matters
This is a nonprecedential memorandum, citable only as permitted by Ninth Circuit Rule 36-3, so it does not create new law. It applies existing circuit authority on § 1326(d), the plausibility standard for prejudice, and the treatment of California robbery as a generic theft aggravated felony.
Its practical lesson is that courts may resolve collateral attacks on removal orders at the prejudice step without deciding the underlying due process question. A defendant whose conviction triggers a categorical bar to relief will struggle to show prejudice, and the panel's treatment of the forfeiture issue suggests that new legal reasons supporting the government's position may be considered on appeal. For practitioners, the disposition underscores that prior convictions and categorical eligibility should be examined early, because ineligibility for the relief at issue can end the prejudice inquiry. It leaves open whether any due process violation occurred in this removal proceeding.