IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50794

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RUBEN CASTELAN-JAIMES, also known as Ruben Jaimes Castelan, also 

known as Ruben Castelon-Jaimes, also known as Ruben Cruz, also known as 

Ruben Castellan,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:13-CR-111-1

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Ruben Castelan-Jaimes appeals the district court’s denial of his motion 

to dismiss the indictment. He contends that the Board of Immigration Appeals 

(BIA) did not have the statutory authority to order his removal in the first 

instance because the Immigration Judge (IJ) had found that he was not 

removable. He asserts that the removal order violated his due process rights 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 9, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-50794 Document: 00512691470 Page: 1 Date Filed: 07/09/2014
No. 13-50794

and may not be used to prove the prior deportation element of the illegal 

reentry offense. 

This court reviews the denial of a motion to dismiss an indictment and 

the underlying constitutional claims de novo. United States v. VillanuevaDiaz, 634 F.3d 844, 848 (5th Cir. 2011). An alien prosecuted for illegal reentry 

under 8 U.S.C. § 1326 may collaterally attack the underlying deportation 

order. See United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). He 

must establish that (1) the prior deportation proceeding was fundamentally 

unfair; (2) the hearing effectively eliminated his right to challenge the hearing 

by means of judicial review; (3) the procedural deficiencies actually prejudiced 

him. United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002); see

§ 1326(d) (requires the alien to demonstrate that (1) the alien exhausted 

administrative remedies; (2) the deportation proceeding deprived the alien of 

the opportunity for judicial review; and (3) the entry of the order was 

fundamentally unfair). If the alien fails to establish one prong of the threepart test in Lopez-Ortiz, the others need not be considered. United States v. 

Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003).

Although Castelan-Jaimes is correct that the BIA does not have the 

authority to order the removal of an alien in the first instance, see James v. 

Gonzales, 464 F.3d 505, 513-14 (5th Cir. 2006), the instant case is procedurally 

distinguishable from James. James involved a timely petition for review of a 

BIA order. The district court determined that the BIA’s removal order in the 

instant case was voidable but not void because Castelan-Jaimes did not file a 

petition for review in this court and this court did not set aside the BIA’s 

removal order as in James. 

Further, Castelan-Jaimes has not made the requisite showing to attack 

the removal order collaterally. First, he has not shown that his due process 

2

 Case: 13-50794 Document: 00512691470 Page: 2 Date Filed: 07/09/2014
No. 13-50794

rights were violated as he received notice of the original charge against him; a 

hearing before an executive or administrative tribunal; and a fair opportunity 

to be heard. See Lopez-Ortiz, 313 F.3d at 230. The BIA issued notice of its 

March 14, 2003, decision on reconsideration to Castelan-Jaimes’s immigration 

lawyer as required by the BIA’s regulations when an alien is represented by a 

lawyer. See United States v. Villanueva-Diaz, 634 F.3d 844, 851-52 (5th Cir. 

2011). Therefore, Castelan-Jaimes received the process that was due to him 

from the Government. See id. at 851-52. Under those circumstances, 

Castelan-Jaimes’s deportation proceeding was fundamentally fair even though 

he did not personally receive notice of the BIA’s decision on reconsideration. 

See id. at 851-52.

Even assuming arguendo that his attorney’s failure to notify him of the 

BIA’s decision on reconsideration could support a claim of lack of fundamental 

fairness, Castelan-Jaimes cannot establish prejudice. “A showing of prejudice 

means that there was a reasonable likelihood that but for the errors 

complained of the defendant would not have been deported [or removed].” 

Mendoza-Mata, 322 F.3d at 832 (internal quotation marks and citation 

omitted). Castelan-Jaimes has not shown that there was a reasonable 

likelihood that but for the alleged errors he would not have been removed or 

that he would have been entitled to any specific relief from removal. CastelanJaimes’s only defense was that the INS did not show that he used a firearm in 

his conviction for brandishing a weapon, which made it a removable offense 

under 8 U.S.C. § 1227(a)(2)(C). On reconsideration, the BIA found that the 

criminal information stated that the weapon used in the offense was a firearm. 

Castelan-Jaimes does not argue that he did not use a firearm or that he had 

specific evidence to establish that the weapon was not a firearm. He has also 

failed to present legal authority or evidence to establish that he would have 

3

 Case: 13-50794 Document: 00512691470 Page: 3 Date Filed: 07/09/2014
No. 13-50794

been entitled to specific relief from removal, such as adjustment of status 

through his legal permanent resident wife, withholding of removal, protection 

under the Convention Against Torture, and voluntary departure. Speculation 

that Castelan-Jaimes would not have been removed does not suffice to 

establish prejudice. See Villanueva-Diaz, 634 F.3d at 852. Further, the 

decision concerning whether to grant voluntary departure is discretionary, and 

deportation errors involving discretionary relief do not violate due process. See

8 U.S.C. § 1229c(b); Lopez-Ortiz, 313 F.3d at 231.

Because Castelan-Jaimes failed to satisfy the requirements for 

challenging the BIA’s removal order collaterally, the July 28, 2003 removal 

order may permissibly serve as a basis for his conviction under § 1326. See 

United States v. Lopez-Vasquez, 227 F.3d 476, 485 (5th Cir. 2000). Therefore, 

the district court did not err in denying Castelan-Jaimes’s motion to dismiss 

the indictment. See id. at 485-86.

AFFIRMED. 

4

 Case: 13-50794 Document: 00512691470 Page: 4 Date Filed: 07/09/2014