NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JOSE MARAVILLA-LEON, 

Defendant-Appellant.

No. 17-50072 

D.C. No. 

3:16-cr-00427-JLS-1 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Janis L. Sammartino, District Judge, Presiding

Argued and Submitted July 10, 2018

Pasadena, California

Before: FISHER,** WATFORD, and FRIEDLAND, Circuit Judges.

Defendant Jose Maravilla-Leon was convicted of illegal reentry into the 

United States under 8 U.S.C. § 1326, which prohibits an alien from reentering after 

he has been deported or removed. Maravilla appeals the District Court’s denial of 

his motion to dismiss the information. He attacks the removal order underlying his 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable D. Michael Fisher, United States Circuit Judge for the 

U.S. Court of Appeals for the Third Circuit, sitting by designation.

FILED

AUG 7 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-50072 

conviction, arguing that his attorney in the removal proceedings was ineffective 

and that his waiver of appeal rights was invalid. We affirm.

“A defendant charged with illegal reentry under 8 U.S.C. § 1326 has a Fifth 

Amendment right to collaterally attack his removal order because the removal 

order serves as a predicate element of his conviction.” United States v. UbaldoFigueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). The collateral attack succeeds if 

the alien shows that entry of the underlying removal order was “fundamentally 

unfair,” 8 U.S.C. § 1326(d)(3)—that is, that it violated due process rights and the 

alien “suffered prejudice as a result,” Ubaldo-Figueroa, 364 F.3d at 1048 (quoting 

United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1988).

1 We review 

this issue de novo, and the District Court’s underlying factual findings are 

reviewed for clear error. United States v. Ramos, 623 F.3d 672, 679-80 (9th Cir. 

2010).

The statute permits the defendant to collaterally attack only “the validity of 

the deportation order.” 8 U.S.C. § 1326(d). Therefore, “due process rights to 

assistance of counsel do not extend beyond the fairness of the [deportation] hearing 

itself.” Balam-Chuc v. Mukasey, 547 F.3d 1044, 1050 (9th Cir. 2008). “[I]n order 

to find ineffective assistance of counsel . . . the legal services must be rendered 

 

1 There are two other statutory requirements for a successful collateral attack on a 

removal order. Neither is at issue here.
3 17-50072 

‘while proceedings were ongoing.’” Id. (quoting Lara-Torres v. Ashcroft, 383 F.3d 

968, 974 (9th Cir. 2004), amended sub nom. Lara-Torres v. Gonzales, 404 F.3d 

1105 (9th Cir. 2005)). 

Maravilla argues that his lawyer rendered ineffective assistance both in 

connection with a 2013 U-visa application and during the removal proceedings. 

However, we are precluded from taking into account counsel’s deficient 

performance in connection with the 2013 U-visa petition. Balam-Chuc, 547 F.3d at 

1050. We have “reject[ed] [an] . . . attempt to cast . . . an expansive and amorphous 

Fifth Amendment due process right that encompasses legal assistance which does 

not undermine the fairness of the actual [removal] process itself.” Lara-Torres, 383 

F.3d at 975, as amended, 404 F.3d at 1105. Ineffective assistance in filing a visa 

petition before the initiation of removal proceedings is not cognizable under 

§ 1326(d), even where failure to obtain the visa later leads to removal. BalamChuc, 547 F.3d. at 1050-51.

Therefore, we need not decide whether Maravilla’s attorney’s assistance in 

2013 meets the ineffectiveness standard. We do note, however, that Maravilla was 

represented exceedingly poorly. His somewhat unusual situation was not well 

explained, and supporting documents did not meet the statutory requirements and 

had expired. Here, as in Balam-Chuc, the attorney’s failings led to “terrible 

consequences for [Maravilla] and his family.” Id. at 1051. And here, as there, we 
4 17-50072 

are constrained to rule that “the Fifth Amendment simply does not apply to the 

preparation and filing of a petition that does not relate to the fundamental fairness 

of an ongoing [removal] proceeding.” Id.

As for the renewed attempt to file a U-visa petition in 2015 once removal 

proceedings had begun, we cannot conclude that Maravilla’s lawyer was 

ineffective, because she could not have done anything more to affect the outcome. 

Maravilla argues that he meets the statutory requirements for a U-visa because in 

2007—before his federal drug conviction—he was standing nearby when his 

brother was murdered, and he has been and will be helpful to law enforcement in 

its investigation of the crime. See 8 U.S.C. § 1101(a)(15)(U)(i). But as part of the 

U-visa petition, an alien is required to provide a certification by law enforcement 

that the statutory criteria are met. 8 C.F.R. § 214.14(c)(2)(i). The sheriff’s office 

provided such a certification in 2012, which Maravilla’s lawyer attached to the 

ultimately-rejected 2013 U-visa petition.

2 However, in 2015, the sheriff’s office 

refused to provide another certification. A sergeant later wrote a letter explaining 

that the denial was not only based on the prior failed U-visa application, but also 

 

2 The 2012 law enforcement certification failed to identify Maravilla as a crime 

victim, instead saying that his deceased brother was the victim of a murder. It also 

did not explain how Maravilla had suffered substantial physical or mental abuse.

Maravilla argues that these deficiencies were the result of his lawyer’s ineffective 

assistance, because she failed to provide the sheriff with the necessary information. 

As we have explained, however, the lawyer’s ineffectiveness in connection with 

the 2013 U-visa application is not cognizable under 8 U.S.C. § 1326(d).
5 17-50072 

on the fact that Maravilla “did not meet the federal guidelines for a U-visa as he 

was not a direct victim, bystander victim or an indirect victim,” and on the fact that 

Maravilla was “going through the federal court process for drug trafficking and 

was currently in final deportation status.” 

Maravilla argues that his lawyer’s ineffective assistance with the 2013 

U-visa petition doomed the 2015 U-visa efforts. However, the District Court made 

a factual finding that the real “impediment in obtaining relief” was “the [sheriff’s] 

determination that [Maravilla] was not a victim.” That finding is not clearly 

erroneous. The sheriff’s letter said that the earlier failed U-visa application was one 

reason that he refused to provide a law enforcement certification, but the 

determination that Maravilla was not a victim was sufficient. Thus, Maravilla’s 

inability to obtain the needed certification in 2015 was not caused by ineffective 

assistance of counsel.

Maravilla also collaterally attacks his underlying removal order on the basis 

of two waivers of appeal rights, which he argues were invalid: his right to appeal 

the 2013 U-visa denial, and his right to appeal the 2015 removal order. He argues 

that these waivers were not knowing and voluntary because no one explained his 

rights to him.

To show a knowing, voluntary waiver of appeal rights, the Government must 

establish that those rights were explained and that the defendant clearly and 
6 17-50072 

personally waived them. United States v. Estrada-Torres, 179 F.3d 776, 781 (9th 

Cir. 1999), overruled on other grounds by United States v. Rivera-Sanchez, 247 

F.3d 905 (9th Cir. 2001). In addition to an invalid waiver, there must also be

prejudice. Ubaldo-Figueroa, 364 F.3d at 1048.

We do not consider Maravilla’s waiver of his right to appeal the 2013 U-visa 

denial, because the due process protection embodied in § 1326(d) does not 

encompass visa petitions filed before removal proceedings begin. See Lara-Torres, 

383 F.3d at 975; Balam-Chuc, 547 F.3d at 1050-51.

With regard to Maravilla’s waiver of his right to appeal the 2015 removal 

order, there was no prejudice. To obtain a U-visa, Maravilla needed a law 

enforcement certification. As discussed, the District Court’s factual finding—that 

Maravilla would not have obtained a certification because he was not a victim—is 

not clearly erroneous. While the court made this finding to support its conclusion 

that there was no ineffective assistance of counsel, the finding also supports the 

conclusion that Maravilla was not prejudiced by his waiver of appeal rights.

Without a U-visa or any viable claim in removal proceedings, appeal from the 

2015 removal order would have been futile.

AFFIRMED.