NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10199
Plaintiff-Appellee, D.C. No.
5:17-cr-00130-LHK-1
v.
JOSE BERNAL RAMIREZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted July 18, 2019
San Francisco, California
Before: PAEZ and RAWLINSON, Circuit Judges, and ANELLO,** District Judge.
Jose Bernal Ramirez is a native and citizen of Mexico. In 2011, Ramirez
was convicted of assault and second-degree robbery in violation of California
Penal Code §§ 245(a)(1) and 211, respectively. An immigration judge ordered
Ramirez removed from the United States in 2013. Ramirez reentered the country
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael M. Anello, United States District Judge for
the Southern District of California, sitting by designation.
and was indicted on one count of illegal reentry in violation of 8 U.S.C. § 1326(a).
Ramirez moved to dismiss the indictment under § 1326(d) based on the purported
invalidity of the 2013 removal order. The district court denied the motion and
found Ramirez guilty as charged after a stipulated facts bench trial. Ramirez
appeals the district court’s denial of his motion to dismiss. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
We review de novo the district court’s denial of a motion to dismiss an
indictment under § 1326(d). See United States v. Alvarado-Pineda, 774 F.3d 1198,
1201 (9th Cir. 2014). To succeed in collaterally challenging a removal order, a
defendant must show: (1) he exhausted his administrative remedies; (2) the
deportation proceedings improperly denied him judicial review; and (3) entry of
the removal order was fundamentally unfair. 8 U.S.C. § 1326(d). The third
requirement is satisfied if the defendant shows that “the deportation proceeding
violated the [defendant’s] due process rights and [h]e suffered prejudice as a
result.” United States v. Reyes-Bonilla, 671 F.3d 1036, 1043 (9th Cir. 2012)
(quotation omitted).
Ramirez cannot establish the required prejudice. To do so, Ramirez must
establish that he had “plausible grounds for relief” from the 2013 removal order.
Id. at 1049. Ramirez was removable as an aggravated felon. See United States v.
Vasquez-Gonzalez, 901 F.3d 1060, 1068 (9th Cir. 2018) (holding that Cal. Penal
2 18-10199
Code § 245(a)(1) is categorically an aggravated felony); United States v. Martinez-
Hernandez, --- F.3d ---, 2019 WL 3332591, *1 (9th Cir. July 25, 2019) (same for
Cal. Penal Code § 211). The only relief available to Ramirez as an aggravated
felon would have been a waiver of inadmissibility under 8 U.S.C. § 1182(h). See
Negrete-Ramirez v. Holder, 741 F.3d 1047, 1054 (9th Cir. 2014). A waiver under
this section may be granted only if an individual’s “denial of admission would
result in extreme hardship” to a United States citizen or lawfully resident
immediate relative. 8 U.S.C. § 1182(h)(1)(B). Ramirez has not demonstrated that
his removal would have resulted in extreme hardship to his lawful permanent
resident mother at the time of his removal proceedings in 2013. See Contra United
States v. Arrieta, 224 F.3d 1076, 1082 (9th Cir. 2000). Because Ramirez has not
shown plausible relief from the removal order underlying his illegal reentry
conviction, he cannot show prejudice. See Vasquez-Gonzalez, 901 F.3d at 1070.
Ramirez’s alternative argument that the immigration judge lacked
jurisdiction over his removal proceedings due to a defective Notice to Appear is
foreclosed by our holding in Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir.
2019).
AFFIRMED.
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