United States v. Daniel Rosas , 493 F. App'x 857 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 22 2012
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. 11-50483
Plaintiff - Appellee, D.C. No. 3:10-cr-04290-JM-1
v.
MEMORANDUM *
DANIEL ESTRADA ROSAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted August 6, 2012
Pasadena, California
Before: REINHARDT, SILVERMAN, and NGUYEN, Circuit Judges.
Daniel Estrada Rosas (“Estrada”) appeals the district court’s denial of his
motion to dismiss an indictment charging him with illegal reentry after deportation
in violation of 8 U.S.C. § 1326. Estrada argues that his underlying March 2002
removal proceeding was invalid due to a number of due process violations. That
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
removal later formed the basis for the 2006 reinstatement of removal upon which
Estrada’s § 1326 conviction is predicated. Estrada also appeals the district court’s
denial of his motion for reconsideration based on an allegation that he received
ineffective assistance of counsel at his January 2002 removal hearing. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
“We review de novo the district court’s denial of a motion to dismiss a §
1326 indictment, where the motion is based on alleged due process defects in an
underlying deportation proceeding.” United States v. Gonzalez, 429 F.3d 1252,
1255 (9th Cir. 2005) (quoting United States v. Muro-Inclan, 249 F.3d 1180, 1182
(9th Cir. 2001)). A district court’s denial of a motion for reconsideration is
reviewed for abuse of discretion. Kona Enter., Inc. v. Estate of Bishop, 229 F.3d
877, 883 (9th Cir. 2000) (citing 389 Orange St. Partners v. Arnold, 179 F.3d 656,
661 (9th Cir. 1999)).
The gravamen of Estrada’s due process argument is that the Immigration
Judge (“IJ”) presiding over his March 2002 removal hearing failed to provide him
with adequate notice regarding the availability of voluntary departure as a possible
form of relief from removal. Specifically, Estrada contends that the IJ failed to
explain the requirements for voluntary departure, failed to provide time for Estrada
to gather evidence to support his request for voluntary departure, and failed to
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appropriately balance the positive and negative factors before denying Estrada
voluntary departure and ordering him removed.
However, even assuming that these purported due process violations
occurred, Estrada cannot successfully attack his § 1326 conviction because he fails
to establish prejudice. See Muro-Inclan, 249 F.3d at 1184 (“When a petitioner
moves to dismiss an indictment under 8 U.S.C. § 1326 based on a due process
violation in the underlying deportation proceeding, he must show prejudice
resulting from the due process violation. To establish prejudice, petitioner does
not have to show that he actually would have been granted relief . . . [but] must
only show that he had a ‘plausible’ ground for relief from deportation.”) (citation
and quotation marks omitted); see also United States v. Gonzalez-Valerio, 342
F.3d 1051, 1056 (9th Cir. 2003) (finding that “if [the petitioner] is barred from
receiving relief, his claim is not ‘plausible’”).
Under 8 U.S.C. § 1229c(c), “[t]he Attorney General shall not permit an alien
to depart voluntarily . . . if the alien was previously permitted to so depart after
having been found inadmissible under section 1182(a)(6)(A) of this title.” Here,
Estrada’s counsel conceded his inadmissibility at the January 2002 hearing and did
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not challenge the removal order.1 Having received voluntary departure in January
2002, Estrada was ineligible for a second voluntary departure in March 2002. See
8 U.S.C. § 1229c(c). Because the record indicates that Estrada did not qualify for
voluntary departure, he was not prejudiced by the IJ’s purported failure to apprise
him of its existence. See United States v. Jimenez-Borja, 378 F.3d 853, 859 (9th
Cir. 2004) (citing Shooshtary v. INS, 39 F.3d 1049, 1051 (9th Cir. 1994)).
Estrada’s remaining due process claims are unpersuasive, and in any event, are
similarly unsupported by a showing of prejudice. Accordingly, we affirm the
district court’s denial of Estrada’s motion to dismiss the indictment.
Estrada also argues that the district court erred in denying his motion for
reconsideration, which was based on a claim of ineffective assistance of counsel at
the January 2002 hearing. Specifically, Estrada contends that his attorney
committed malpractice at his January 2002 hearing by conceding Estrada’s
inadmissibility despite Estrada’s participation in the FUP. However, Estrada fails
to establish that counsel’s concession of inadmissibility in January 2002 was
1
Estrada contends that he was not “inadmissible” in January 2002 by virtue
of his participation in the Family Unity Program (“FUP”) and should not have been
granted voluntary departure at that hearing. However, Estrada’s counsel never
contested the validity of the January 2002 voluntary departure order. According to
the record in March 2002, Estrada had been granted voluntary departure in January
after being found “inadmissible” under 8 U.S.C. § 1182(a)(6)(A)(i) and then
returned to the country without inspection.
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objectively unreasonable. See Strickland v. Washington, 466 U.S. 668, 688 (1984)
(“When a convicted defendant complains of the ineffectiveness of counsel’s
assistance, the defendant must show that counsel’s representation fell below an
objective standard of reasonableness.”). As the district judge properly held,
counsel could not reasonably have been expected to foresee our later precedent
suggesting that individuals in the FUP are “admitted” for at least some purposes.
See Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1020 (9th Cir. 2006). Therefore,
the district court did not abuse its discretion in denying Estrada’s motion for
reconsideration.
AFFIRMED.
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