NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10077
Plaintiff-Appellee, D.C. No.
2:19-cr-00552-MTL-1
v.
MIGUEL ANDRES LARA-UNZUETA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Michael T. Liburdi, District Judge, Presiding
Submitted April 13, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and R. NELSON and HUNSAKER, Circuit
Judges.
Appellant Miguel Andres Lara-Unzueta appeals the district court’s denial of
his motion to dismiss his indictment for illegal reentry. See 8 U.S.C. § 1326(a),
*
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).
(b)(2).1 Lara-Unzueta argues that his underlying 1998 removal order was invalid
because the Immigration Judge (“IJ”) erroneously rejected his request for a
§ 212(c) hearing for discretionary relief. See INS v. St. Cyr, 533 U.S. 289, 326
(2001), superseded by statute on other grounds as stated in Nasrallah v. Barr, 140
S. Ct. 1683 (2020). But Lara-Unzueta has not demonstrated that the deportation
proceedings “improperly deprived [him] of the opportunity for judicial review.” 8
U.S.C. § 1326(d)(2). Thus, he cannot collaterally attack the underlying 1998
removal order.
To satisfy 8 U.S.C. § 1326(d)(2), a defendant “must show an actual or
constructive inability to seek judicial review, related to an alleged error or obstacle
in the deportation proceedings.” United States v. Gonzalez-Villalobos, 724 F.3d
1125, 1133 (9th Cir. 2013). On appeal, however, Lara-Unzueta argues only that
(1) the IJ erred; (2) the record as to his § 212(c) eligibility had not been developed
because of the error; and (3) he did not understand the requirements for a § 1326
collateral attack at the time of his 1998 removal. None of these arguments
demonstrate Lara-Unzueta was actually or constructively “foreclose[d]” from
challenging the IJ’s decision not to hold a § 212(c) hearing. See United States v.
Mendoza-Lopez, 481 U.S. 828, 838 (1987), adopted by statute as stated in United
1
We review de novo the denial of a motion to dismiss based on 8 U.S.C.
§ 1326(d). United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir. 2000)
(citation omitted).
2
States v. Gonzalez-Flores, 804 F.3d 920 (9th Cir. 2015). Lara-Unzueta did, in fact,
appeal the IJ’s § 212(c) determination to the Board of Immigration Appeals and
could have sought judicial review of the Board’s decision affirming Lara-
Unzueta’s ineligibility for statutorily relief.
Without the requisite showing under 8 U.S.C. § 1326(d)(2), Lara-Unzueta
cannot collaterally attack his 1998 removal order.2
AFFIRMED.
2
Because we conclude Lara-Unzueta has not made the requisite showing under 8
U.S.C. § 1326(d)(2), we need not address the other arguments presented on appeal.
3