United States v. Jonathan Merlos , 620 F. App'x 639 ( 2015 )

FILED
NOT FOR PUBLICATION
OCT 22 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50536
Plaintiff - Appellee, D.C. No. 2:12-cr-00319-RT-1
v.
MEMORANDUM*
JONATHAN ALFREDO MERLOS, AKA
Jonathan Alfredo Merlos Galiano, AKA
Jonathan Merlos,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, Senior District Judge, Presiding
Submitted October 20, 2015**
Pasadena, California
Before: IKUTA and OWENS, Circuit Judges and SESSIONS,*** 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 William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
Jonathan Alfredo Merlos appeals the district court’s order precluding
evidence and argument in support of a necessity defense, and denying his related
jury instructions. We have appellate jurisdiction under 28 U.S.C. § 1291.
The district court did not err when it concluded that Merlos’s proffer was
insufficient to establish that a reasonable juror could conclude he had no available
legal alternatives to violating 8 U.S.C. § 1326(a), because Merlos “failed to avail
himself of a viable legal alternative, namely petitioning the Attorney General for
reentry.” United States v. Arellano-Rivera, 244 F.3d 1119, 1126 (9th Cir. 2001).
Merlos did not petition the Attorney General for humanitarian parole under 8
U.S.C. § 1182(d)(5)(A) when he was in Mexico, or at the border when he illegally
crossed into the United States, or during the thirty-three months he lived in the
country. Merlos’s speculation that the Attorney General would deny humanitarian
parole “in no way negate[s] the application process as a viable legal alternative.”
Arellano-Rivera, 244 F.3d at 1126 (alterations in original) (internal quotations
omitted). Nor is there any evidence that a petition for humanitarian parole would
have been futile, given the change in Merlos’s circumstances since the denial of his
2003 petition for withholding of removal, and given the difference in the eligibility
criteria between humanitarian parole and withholding. Compare 8 U.S.C. §
1182(d)(5)(A) with 8 U.S.C. § 1231(b)(3)(A). Therefore, the district court
2
properly precluded him from presenting his necessity defense. Arellano-Rivera,
244 F.3d at 1126.
AFFIRMED.
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