United States v. Juan Ramirez-Villalba , 490 F. App'x 912 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50043
Plaintiff - Appellee, D.C. No. 3:09-cr-03839-H-1
v.
MEMORANDUM*
JUAN MANUEL RAMIREZ-
VILLALBA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted November 8, 2012**
Pasadena, California
Before: GOODWIN and O’SCANNLAIN, Circuit Judges, and ZOUHARY,
District Judge.***
*
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 Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
Appellant Juan Manuel Ramirez-Villalba (“Ramirez”) appeals the district
court’s denial of his motion to dismiss his indictment under 8 U.S.C. § 1326 for
attempted reentry after deportation. The denial of such a motion is reviewed de
novo where, as here, the motion was based on “due-process defects in [an]
underlying deportation proceeding.” United States v. Moriel-Luna, 585 F.3d 1191,
1196 (9th Cir. 2009).
Ramirez claims that during the deportation proceedings at issue, the
Immigration Judge (“IJ”) never advised him of a potential “extreme hardship”
waiver of removability or a humanitarian reinstatement of his immigrant visa
petition. See 8 U.S.C. § 1182(h); 8 C.F.R. § 205.1(a)(3)(i). According to Ramirez,
these errors were prejudicial and violated due process.
To prove prejudice in violation of due process, a defendant must show that
“upon a review of the record, it appears. . .an IJ could have concluded. . .his
potential claim[s] for relief” from removal “would be ‘plausible.’” United States v.
Pallares-Galan, 359 F.3d 1088, 1103-04 (9th Cir. 2004). Here, neither of
Ramirez’s claims would produce a plausible avenue for relief.
In certain circumstances, an alien otherwise removable may seek a waiver of
removal if: (1) his parent is a legal permanent resident; (2) his removal “would
result in extreme hardship to the. . .lawfully resident. . .parent” and (3) “the
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Attorney General, in his discretion” consents. 8 U.S.C. § 1182(h); see also
Mendoza v. Holder, 623 F.3d 1299, 1301 n.3 (9th Cir. 2010). In evaluating a claim
of extreme hardship to Ramirez’s permanent-resident mother, we consider
numerous unfavorable factors—including, among many others, Ramirez’s multiple
pre-1995 felonies, his repeated illegal entries, and the length of time he had spent
in Mexico or in American incarceration—and conclude he had no plausible claim
to an extreme-hardship waiver. See Gutierrez-Centeno v. INS, 99 F.3d 1529, 1533
n.8 (9th Cir. 1996), superseded by statute on other grounds as stated in Falcon
Carriche v. Ashcroft, 350 F.3d 845, 854 n.9 (9th Cir. 2003); United States v.
Arrieta, 224 F.3d 1076, 1082 (9th Cir. 2000); Hassan v. INS, 927 F.2d 465, 467
(9th Cir. 1991).
Ramirez argues that he could have obtained a humanitarian reinstatement of
his immigrant visa petition, but he concedes that even after such reinstatement, he
would still need to obtain a waiver of his prior convictions under 8 U.S.C. §
1182(h) or 8 U.S.C. § 1182(c) (1994) in order to avoid deportation. As discussed
above, a section 1182(h) claim is implausible. Similarly, there was no plausible
basis for exercising section 1182(c) discretion. See Pablo v. INS, 72 F.3d 110, 113
(9th Cir. 1995).
AFFIRMED.
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