United States v. Jose Zavala-Zavala ( 2013 )


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  •                                                                             FILED
    NOT FOR PUBLICATION                              JUN 06 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 12-50298
    Plaintiff - Appellee,              D.C. No. 3:11-cr-05782-JM-1
    v.
    MEMORANDUM *
    JOSE ARMANDO ZAVALA-ZAVALA,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Jeffrey T. Miller, Senior District Judge, Presiding
    Submitted June 4, 2013 **
    Pasadena, California
    Before: THOMAS, SILVERMAN, and FISHER, Circuit Judges.
    José Zavala-Zavala appeals the district court’s denial of his 8 U.S.C. §
    1326(d) motion to dismiss the indictment, which charged him with being found in
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    the United States after removal in violation of 8 U.S.C. § 1326(a) and illegal entry
    with a prior illegal reentry in violation of 8 U.S.C. § 1325. We affirm.
    The immigration judge violated due process by not allowing Zavala-Zavala
    to apply for voluntary departure before denying relief. See United States v.
    Melendez-Castro, 
    671 F.3d 950
    , 954 (9th Cir. 2012) (per curiam). However,
    Zavala-Zavala’s argument that he need not establish prejudice is without merit.
    See id. at 954-55.
    Contrary to Zavala-Zavala’s assertion, the district court applied the correct
    prejudice test when it considered the favorable and unfavorable factors to
    determine whether it was plausible that an immigration judge would have granted
    Zavala-Zavala voluntary departure pursuant to 8 U.S.C. § 1229c(a). See id.;
    United States v. Pallares-Galan, 
    359 F.3d 1088
    , 1104 (9th Cir. 2004). In light of
    Zavala-Zavala’s more than 25 previous voluntary returns to Mexico and the
    minimal positive equities, it was not plausible that an immigration judge would
    have granted Zavala-Zavala voluntary departure in 2006.
    AFFIRMED.
    2
    

Document Info

Docket Number: 12-50298

Judges: Thomas, Silverman, Fisher

Filed Date: 6/6/2013

Precedential Status: Non-Precedential

Modified Date: 10/19/2024