United States v. Bustos-Ochoa

An alien cannot challenge his initial removal order as fundamentally unfair based on the fact that the immigration judge did not advise him on relief for which he was not eligible.

Appellant Bustos-Ochoa was removed from the United States in 2003 and deported to Mexico. He then attempted to reenter the United States in 2010. He appeals the district court’s denial of his motion to dismiss his illegal reentry charge and also appeals his sentence of 48 months and three years of supervised release. Aliens have the right to challenge an illegal reentry if their initial removal order was not valid. Bustos-Ochoa challenges his initial removal order as fundamentally unfair, since the immigration judge did not advise him about voluntary departure. The district court determined that he was not eligible for voluntary departure, since he was an aggravated felon due to his conviction of possession of methamphetamines. However, Bustos-Ochoa argues that he could have been allowed voluntary departure, as the government did not produce documents to the immigration judge that would establish his felony conviction. The Court found that this argument was “without merit,” since he could not be prejudiced by the judge’s failure to inform him of relief from which he was statutorily barred. Bustos-Ochoa also argued that his sentence was invalid because his felony conviction was not proved at trial. However, the Court relied on precedent that states this argument is invalid. The Court held that the sentence was valid. AFFIRMED.