United States v. Samuel Frias-Flores ( 2011 )

FILED
NOT FOR PUBLICATION APR 04 2011
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. 09-50658
Plaintiff - Appellee, D.C. No. 3:09-cr-01771-W-1
v.
MEMORANDUM *
SAMUEL FRIAS-FLORES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted February 16, 2011
Pasadena, California
Before: ALARCÓN, RYMER, and BYBEE, Circuit Judges.
Appellant Samuel Frias-Flores was convicted for illegal reentry into the
United States under 8 U.S.C. § 1326(a) and was sentenced to thirty-three months in
prison. Frias-Flores brought a § 1326(d) collateral attack, challenging the
deportation proceeding underlying his § 1326(a) conviction as being
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
constitutionally deficient. We find that Frias-Flores’s due process rights were
violated by defects in the deportation proceeding and that Frias-Flores does state a
plausible claim for relief. We reverse Frias-Flores’s § 1326(a) conviction.1
To successfully challenge the underlying deportation hearing, Frias-Flores
must (1) have “exhausted any administrative remedies that may have been
available to seek relief against the order”; (2) demonstrate that “the deportation
proceedings at which the order was issued improperly deprived the alien of the
opportunity for judicial review”; and (3) demonstrate that “the entry of the order
was fundamentally unfair.” 8 U.S.C. § 1326(d).2
This court has held that an alien “is exempted from the exhaustion bar” and
“was deprived of the opportunity for meaningful judicial review” where the IJ “did
not inform [the alien] that he was eligible for relief from deportation.” United
States v. Ubaldo-Figueroa, 364 F.3d 1042, 1049–50 (9th Cir. 2004). Because the
IJ did not inform Frias-Flores of his statutory eligibility for pre-conclusion
voluntary departure before Frias-Flores waived his right to appeal, Frias-Flores has
been exempted from or met the first two requirements of 8 U.S.C. § 1326(d). Id.1
Because the parties are familiar with the facts, we do not recount them
here.
2
This court reviews the denial of an 8 U.S.C. § 1326(d) collateral attack de
novo. United States v. Ortiz-Lopez, 385 F.3d 1202, 1203 (9th Cir. 2004).
2
Additionally, the entry of the removal order against Frias-Flores “was
fundamentally unfair” under 8 U.S.C. § 1326(d) because (1) Frias-Flores’s due
process rights were violated by defects in his underlying deportation proceeding,
and (2) Frias-Flores suffered prejudice as a result of the defects. See Ubaldo-
Figueroa, 364 F.3d at 1048. From the record, it is clear that the IJ did not conduct
the necessary evaluation of the “favorable and unfavorable factors” relevant to a
decision regarding pre-conclusion voluntary departure. Campos-Granillo v. INS,
12 F.3d 849, 852 (9th Cir. 1993) (citation omitted). Although the grant of pre-
conclusion voluntary departure is discretionary, the IJ must “evaluat[e] all of [the
favorable and unfavorable factors], assigning weight or importance to each one
separately and then to all of them cumulatively.” Id. (alteration and citation
omitted). The IJ did not properly weigh both favorable and unfavorable factors
here. Nor did the IJ allow Frias-Flores to introduce evidence to support his claim
for voluntary departure; rather, it appears from the transcript that the only evidence
before the IJ when he made that decision was “some conviction documents”
provided by the government and Frias-Flores’s Notice to Appear. These defects
demonstrate that the deportation proceeding underlying Frias-Flores’s 8 U.S.C. §
1326(a) conviction was constitutionally defective. 8 U.S.C. § 1326(d)(3); see
Ubaldo-Figueroa, 364 F.3d at 1048.
3
Frias-Flores suffered prejudice because of the lack of due process in his
deportation proceeding and that, had he been given the process required, he would
have stated a “plausible” claim for voluntary departure. Ubaldo-Figueroa, 364
F.3d at 1050. The unfavorable factors in Frias-Flores’s record are counterbalanced
by the moderate nature of his crimes (i.e., no convictions for drug sales or
trafficking or for violent crimes); his twenty-five year residence in the United
States; the U.S. citizenship and residency of his wife, their ten children, his six
siblings, and his parents’ U.S. permanent residence; his work skills, certification,
and work history, as reflected in the record by Social Security records and
testimonials submitted by his immediate family that he is their “so[le] provider”
[E.R. 123]; and his U.S. family’s strong support of him [E.R. 123–153]. These
favorable factors—none of which were considered by the IJ before it deprived
Frias-Flores of pre-conclusion voluntary departure—render Frias-Flores’s claim
plausible. See Ubaldo-Figueroa, 364 F.3d at 1051 (finding the alien’s work ethic,
U.S. citizen wife and two U.S. citizen children, substantial family ties in the U.S.,
and his active role in this children’s lives “significant” favorables).
We find that Frias-Flores’s 2008 deportation order cannot be the basis of a
conviction under 8 U.S.C. § 1326(a) and we reverse Frias-Flores’s conviction
under 8 U.S.C. § 1326.
4
REVERSED.
5