NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 10 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50207
Plaintiff-Appellee, D.C. No.
3:15-cr-01789-LAB-1
v.
FIDENCIO CASTRO-VERDUGO, AKA MEMORANDUM*
Fidel Castro-Verdugo,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted October 3, 2017**
Pasadena, California
Before: GRABER, MURGUIA, and CHRISTEN, Circuit Judges.
Defendant Fidencio Castro-Verdugo appealed the district court’s denial of
his 8 U.S.C. § 1326(d) motion to dismiss the indictment, in which he argued that
his underlying removal proceeding did not comport with due process and could not
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
serve as the basis for his charge under 8 U.S.C. § 1326. Reviewing de novo, United
States v. Pallares-Galan, 359 F.3d 1088, 1094 (9th Cir. 2004), we affirm.
The district court did not err in denying Castro-Verdugo’s motion to dismiss
the indictment. The IJ complied with the procedural due process requirement to
inform Castro-Verdugo of his eligibility to apply for relief from removal and
afford him the opportunity to apply for such relief. See United States v. Gonzalez-
Flores, 804 F.3d 920, 927 (9th Cir. 2015), cert. denied, 136 S. Ct. 1234 (2016). The
IJ “meaningfully advised” Castro-Verdugo of his rights where the IJ informed him
of the right to present evidence, identified the specific relief he might be eligible
for, and engaged in a one-on-one discussion with him giving him an opportunity to
understand what the IJ was considering and to respond. See United States v.
Melendez-Castro, 671 F.3d 950, 954 (9th Cir. 2012) (per curiam).
Castro-Verdugo also argues that his case is analogous to Melendez-Castro in
which the court held Melendez-Castro was not meaningfully advised of his right to
seek voluntary departure because the IJ told Melendez-Castro that he was eligible
for relief, but immediately stated he would not grant the relief because of
Melendez-Castro’s criminal history. Id. However, Melendez-Castro is
distinguishable because here there is no indication in the record before us that the
IJ prejudged Castro-Verdugo’s possible application for relief.
Accordingly, Castro-Verdugo’s underlying removal order is not
2
fundamentally unfair and stands as a predicate element for his charge under 8
U.S.C. § 1326, removed alien found in the United States.
AFFIRMED.
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