Opinion
No. 07-50421.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed September 4, 2008.
USSD-Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
James Fife, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, Dana M. Sabraw, District Judge, Presiding. D.C. No. CR-06-01842-DMS.
Before: SCHROEDER, KLEINFELD, and IKUTA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jose Liberado Vargas-Castaneda appeals from the district court's denial of his motion to dismiss the indictment charging him with being a deported alien found in the United States, in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the judgment.
Vargas-Castaneda's motion to file his untimely reply brief is granted. The Clerk shall file the reply brief received on April 9, 2008.
Vargas-Castaneda contends that his underlying deportation proceeding was invalid because the immigration judge failed to advise him that he was eligible to apply for waiver of deportation, pursuant to 8 U.S.C. § 1182(h). We conclude that Vargas-Castaneda was not prejudiced by any defect in his deportation proceeding. Vargas-Castaneda has not shown a plausible ground for relief from deportation because the evidence of extreme hardship to his United States citizen children is insufficient. See United States v. Muro-Inclan, 249 F.3d 1180, 1185-86 (9th Cir. 2001).
We remand to the district court with instructions to correct the reference in the judgment to " 8 U.S.C. § 1326(a) and (b)." See United States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to delete the reference to § 1326(b)).
AFFIRMED; REMANDED to correct judgment.