Opinion
No. 18-50072
01-30-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAFAEL MATA-JIMENEZ, Defendant-Appellant.
NOT FOR PUBLICATION
DC No. CR 16-02163 MMA MEMORANDUM Appeal from the United States District Court for the Southern District of California
Michael M. Anello, District Judge, Presiding Submitted January 7, 2019 Pasadena, California Before: TASHIMA and WATFORD, Circuit Judges, and ZOUHARY, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C).
The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation.
Defendant Rafael Mata-Jimenez ("Mata-Jimenez") appeals the district court's denial of his motion to dismiss an indictment charging him with illegal reentry after deportation under 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We review the district court's decision de novo, United States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir. 2012), and we affirm.
Mata-Jimenez, a native and citizen of Mexico, entered a conditional guilty plea to illegal reentry under 8 U.S.C. § 1326(a) and (b) after the district court denied his motion to dismiss the indictment. Mata-Jimenez contends that the district court should have granted his motion to dismiss the indictment under 8 U.S.C. § 1326(d) because the underlying removal order violated his due process rights.
To succeed in challenging the validity of an underlying removal order under § 1326(d), a defendant must demonstrate that: (1) he exhausted any available administrative remedies; (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). To satisfy the third requirement, a defendant must show that his "due process rights were violated by defects in the underlying deportation proceeding" and that he "suffered prejudice as a result of the defects." United States v. Becerril-Lopez, 541 F.3d 881, 885 (9th Cir. 2008).
Because demonstrating prejudice is a necessary and indispensable element to Mata-Jimenez's challenge under § 1326(d), his challenge must fail. Mata-Jiminez was convicted of an aggravated felony which negates any prejudice. See United States v. Alvarado-Pineda, 774 F.3d 1198, 1201-02 (9th Cir. 2014) ("As a general matter, a defendant who has been convicted of an aggravated felony cannot show that he was prejudiced by defects in his underlying proceedings."). Prior to his 2015 removal order, Mata-Jimenez was convicted of felony infliction of a corporal injury on a spouse under California Penal Code § 273.5(a) and sentenced to five years' imprisonment. This Circuit has held that a conviction under § 273.5(a) is categorically a crime of violence under 18 U.S.C. § 16(a). See Banuelos-Ayon v. Holder, 611 F.3d 1080, 1086 (9th Cir. 2010) (applying the categorical approach and holding that Cal. Penal Code § 273.5(a) is a categorical match to 18 U.S.C. § 16(a)). A conviction under 18 U.S.C. § 16(a) with a term of imprisonment of "at least one year" is an aggravated felony under the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1101(a)(43)(F) (defining an "aggravated felony" as including "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year"). Because Mata-Jimenez was convicted under § 273.5, a categorical match to a crime of violence as defined by 18 U.S.C. § 16(a), and sentenced to five years' imprisonment, his conviction constitutes an aggravated felony under the INA. Consequently, he cannot show prejudice under § 1326(d) and his collateral challenge fails. Alvarado-Pineda, 774 F.3d at 1201-02.
Accordingly, the district court correctly denied Mata-Jimenez's motion to dismiss the indictment.
AFFIRMED.