United States v. Miguel Ponce-Zuniga , 515 F. App'x 693 ( 2013 )

FILED
NOT FOR PUBLICATION APR 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50033
Plaintiff - Appellee, D.C. No. 3:10-cr-02238-JLS-1
v.
MEMORANDUM*
MIGUEL ANGEL PONCE-ZUNIGA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted February 6, 2013
Pasadena, California
Before: PREGERSON, W. FLETCHER and NGUYEN, Circuit Judges.
In March 2009, Miguel Ponce-Zuniga (“Ponce”), a former legal permanent
resident of the United States, was removed from the United States following an
aggravated felony conviction. In October 2010, Ponce was convicted of attempted
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
reentry by a removed alien under 8 U.S.C. § 1326. Ponce appeals this conviction.
We have jurisdiction under 28 U.S.C. § 1291. We affirm.
A defendant may challenge an attempted reentry conviction by collaterally
attacking the underlying removal order pursuant to 8 U.S.C. § 1326(d). Section
1326(d) has three requirements: (1) the defendant must have exhausted
administrative remedies; (2) the deportation proceedings must have improperly
deprived the defendant of the opportunity for judicial review; and (3) the entry of
the order must have been fundamentally unfair. We review a collateral attack to a
removal order de novo. United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th
Cir. 2010) (en banc). The entry of the removal order is fundamentally unfair if
“(1) [the immigrant’s] due process rights were violated by defects in his underlying
deportation proceeding, and (2) he suffered prejudice as a result of the defects.”
United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (internal
citation and quotation marks omitted).
Ponce fails to meet the third requirement of § 1326(d). Ponce’s due process
rights were violated by the IJ’s failure to obtain a valid waiver of his right to
counsel. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1103–05 (9th Cir. 2004)
(holding that an IJ’s failure to obtain a knowing and voluntary waiver of the right
to counsel from a pro se petitioner is a due process violation). The IJ failed to get a
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knowing waiver because the IJ did not ask Ponce if he wished to have an attorney,
did not determine whether good cause existed to grant Ponce more time to find an
attorney, and did not tell Ponce about the consequences of proceeding without an
attorney. See Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008).
Ponce was not prejudiced by this violation, however, because he did not
have a plausible ground for relief at the time of his removal hearing. See United
States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). Ponce argues he would
have sought a continuance at the hearing to seek state habeas relief based on the
ineffective assistance of counsel who represented him during his 2007 aggravated
felony proceedings. Ponce alleges that counsel in those proceedings failed to
inform him of the potential immigration consequences of a guilty plea and advised
him to plead guilty when he lacked the requisite knowledge element of the crime.
The Supreme Court held in Padilla v. Kentucky that the Sixth Amendment requires
defense counsel to “advise a noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences.” 559 U.S. 356, 130 S. Ct. 1473,
1483 (2010). But Padilla had not been decided at the time of Ponce’s 2009
removal hearing, and the Supreme Court recently held that Padilla does not apply
retroactively. Chaidez v. United States, 568 U.S. __, 133 S. Ct. 1103, 1105 (2013).
In light of this holding, as well as Ponce’s criminal history and the other charges
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that were dismissed as a result of the plea agreement, we cannot conclude that
Ponce’s ineffective assistance of counsel claim was a plausible ground for relief.
AFFIRMED.
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