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United States of America v. Ricardo Cisneros-Resendiz

September 6, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICARDO CISNEROS-RESENDIZ,
DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding D.C. No. 3:10-cr-00407-JLS-1

The opinion of the court was delivered by: Ikuta, Circuit Judge:

FOR PUBLICATION

Argued and Submitted July 15, 2011-Pasadena, California

Before: Pamela Ann Rymer, Richard C. Tallman, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

OPINION

Ricardo Cisneros-Resendiz (Cisneros) challenges his conviction for illegal re-entry after removal, in violation of 8 U.S.C. § 1326, on the ground that the removal order on which the conviction was based was invalid. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

Cisneros is a native and citizen of Mexico. He was brought to the United States by his parents at the age of ten and spent much of his youth in the San Diego area.

On January 5, 2006, Cisneros attempted to enter the United States at the San Ysidro port of entry, falsely claiming he was a U.S. citizen. Because a San Diego County warrant for Cisneros's arrest was outstanding, the Department of Homeland Security (DHS) turned him over to state officials. Cisneros was subsequently convicted of possession of methamphetamine. After completing his state jail sentence, Cisneros was returned to DHS custody.

On February 17, 2006, DHS issued a Notice to Appear (NTA) alleging that Cisneros was inadmissible and subject to removal because he was an arriving alien who had applied for admission to the United States by an oral false claim to United States citizenship and had been convicted of a drug offense. On the basis of these allegations, the NTA charged Cisneros with being inadmissible under 8 U.S.C. § 1182(a)(2)(A)(i)(II),*fn1 1182(a)(6)(C)(ii),*fn2 and 1182(a)(7)(A)(i)(I).*fn3 At a removal hearing on February 27, 2006, Cisneros admitted the charges in the NTA, and the Immigration Judge (IJ) ordered him removed to Mexico. Cisneros was removed to Mexico on the same day.

Cisneros's criminal history establishes that he was found in the United States at least four times following his February 27, 2006 removal. He was convicted of reckless driving on July 10, 2007, and was returned to Mexico on September 24, 2007. On July 1, 2008, he was convicted of several violations of the California Vehicle Code, including driving on a suspended or revoked license, and sentenced to probation; the next day he was returned to Mexico. On January 16, 2009, he was convicted of possession of methamphetamine. A little over a month later, on February 23, 2009, he was again returned to Mexico. Finally, on September 18, 2009, Cisneros was arrested by the Carlsbad, California police for possessing .3 grams of methamphetamine. He pleaded guilty to this offense and was sentenced to 150 days in jail and 3 years probation.

In February 2010, Cisneros was indicted by a federal grand jury for illegal re-entry after removal, in violation of 8 U.S.C. § 1326.*fn4 The government based its § 1326 prosecution on Cisneros's February 27, 2006 removal order. Before trial, Cisneros moved to dismiss the § 1326 indictment on the ground that the removal order was invalid because the removal proceedings were fundamentally unfair; specifically, Cisneros argued that the IJ had failed to inform him that he could withdraw his application for admission into the United States, and he had been prejudiced as a result. The district court denied Cisneros's motion to dismiss the ...


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