U.S. v. Reyes-Bonilla, No. 50361 (2-6-12) (Goodwin with Wardlaw and Cogan, D.J.).
In a 1326 appeal, the defendant argues that his his prior removal hearing was fundamentally unfair, and violated his due process, because he did not have counsel nor did he understand the proceedings. The defendant was a Guatemalan undocumented alien when he was convicted of carjacking, which lead to the removal in 2001. In seeking relief in a collateral attack on a prior deportation or removal, there must be a violation of due process and prejudice. Here, the 9th holds that: (1) prejudice will not be presumed even when an alien is not advised of his right to counsel and did not waive this right; and (2) the defendant did not have a plausible or tenable claim to to relief in 2001. The holding reflects that to have prejudice from denial of advisement of counsel, there must be a basis for relief.