USA V. FIDENCIO CASTRO-VERDUGO, No. 16-50207 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION OCT 10 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 16-50207 D.C. No. 3:15-cr-01789-LAB-1 v. FIDENCIO CASTRO-VERDUGO, AKA Fidel Castro-Verdugo, MEMORANDUM* 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. GonzalezFlores, 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. 3
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