United States v. Humberto Gonzalez-Flores

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50067
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-01809-BEN-1
HUMBERTO GONZALEZ-FLORES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
February 6, 2015—Pasadena, California
Filed June 8, 2015
Before: Michael J. Melloy,* Jay S. Bybee,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
*
The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
2 UNITED STATES V. GONZALEZ-FLORES
SUMMARY**
Criminal Law
The panel affirmed the district court’s denial of a motion
to dismiss an information charging the defendant under 8
U.S.C. § 1326 with being an alien found in the United States
after removal, in a case in which the defendant claimed that
his 2004 removal order was invalid because the immigration
judge violated his due process rights by failing to inform him
that he might be eligible for voluntary departure.
The panel held that the defendant may not bring a
collateral attack against the removal order because any error
at the 2004 removal proceedings was not prejudicial. The
panel explained that even if the IJ’s detailed colloquy
regarding the issue of the defendant’s eligibility for voluntary
departure fell short of the requirements of 8 C.F.R.
§ 1240.11(a)(2), the defendant failed to carry his burden of
showing a grant of relief was plausible, where the defendant’s
positive equities were minimal, his negative equities were
significant, and he failed to carry his burden of showing that
aliens with his scant positive equities have received relief.
COUNSEL
Michael A. Marks (argued), Federal Defenders of San Diego,
Inc., San Diego, California, for Defendant-Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GONZALEZ-FLORES 3
Scott T. Jones (argued), Assistant United States Attorney;
Laura E. Duffy, United States Attorney; Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division, San Diego, California, for Plaintiff-
Appellee.
OPINION
IKUTA, Circuit Judge:
Humberto Gonzalez-Flores appeals from the district
court’s denial of his motion to dismiss an information
charging him under 8 U.S.C. § 1326 with being an alien
found in the United States after he was removed in 2004. We
affirm. Gonzalez-Flores may not bring a collateral attack
against the removal order underlying his conviction because
any error at the 2004 removal proceedings was not
prejudicial. See 8 U.S.C. § 1326(d)(3); United States v.
Vidal-Mendoza, 705 F.3d 1012, 1015–16 (9th Cir. 2013).
I
Gonzalez-Flores, a citizen of Mexico, entered the United
States illegally in 1999. He was 15 years old at the time of
entry. He began attending high school, but dropped out after
the eleventh grade to start working. He worked for several
years at Los Angeles International Airport loading food onto
passenger planes. On November 4, 2004, he was convicted
of robbery in violation of California Penal Code § 2111 and
1
Section 211 defines robbery as “the felonious taking of personal
property in the possession of another, from his person or immediate
presence, and against his will, accomplished by means of force or fear.”
4 UNITED STATES V. GONZALEZ-FLORES
was sentenced to 210 days in county jail.2 He had two prior
misdemeanor convictions: in 2004, he was convicted of
driving without a license, and in 2001, he was convicted of
loitering in a public park after hours.3
In November 2004, after his robbery conviction,
Gonzalez-Flores was placed in removal proceedings. He
appeared pro se at a hearing before an immigration judge (IJ)
on December 29, 2004. During the hearing, the IJ asked
Gonzalez-Flores a series of questions to draw out information
relating to his eligibility for immigration relief. The IJ first
asked whether Gonzalez-Flores was married or had children,
and whether his parents were United States citizens or lawful
permanent residents. Gonzalez-Flores answered “no” to these
questions. The IJ then asked whether Gonzalez-Flores’s
parents were born, lived in, and were citizens of Mexico.
Gonzalez-Flores answered “yes.” In response to further
questions, Gonzalez-Flores stated that no one had ever filed
a petition on his behalf so he could immigrate to the United
States, and that he was not a permanent resident of the United
States. Gonzalez-Flores also agreed with the IJ’s statement
that Gonzalez-Flores came into the United States for the first
time in 1999. The IJ then confirmed that Gonzalez-Flores
had been convicted of robbery and sentenced to 210 days in
jail.
2
The government asserts that the sentence was 240 days, but this factual
dispute does not affect our analysis.
3
Gonzalez-Flores disputes that he was convicted of loitering in the park.
Because the district court did not resolve this dispute, we do not rely on
this misdemeanor conviction for our analysis.
UNITED STATES V. GONZALEZ-FLORES 5
After the IJ asked Gonzalez-Flores if there was any other
information he wanted to tell the court and Gozalez-Flores
said “no,” the IJ explained his conclusion:
Then, sir, then the court does find that you’ll
be removed from the United States to Mexico
based on the charges contained in the notice to
appear. He’s not eligible for any relief or any
other benefits under the immigration laws.
Specifically, he’s not eligible for cancellation
of removal because he does not have the
requisite ten years residence or the family ties
to be eligible for that form of relief.
He’s not eligible for adjustment of status
because no petition has been filed on his
behalf to allow him to adjust status.
And as for voluntary departure, I’m not [going
to] grant that form of relief. The respondent’s
been convicted of a crime of violence as well
as a crime of theft: robbery. I’m [going to]
find that negative . . . that negative aspect is
enough to overcome the, um, positive aspects
that the respondent has in this case, which are
very few except for those normally associated
with any residence of any duration. So I’m
not [going to] grant voluntary departure as a
matter of discretion.
As for any claim to citizenship, he indicated
his parents were born in Mexico, live in
Mexico, and are citizens of Mexico, as were
6 UNITED STATES V. GONZALEZ-FLORES
his grandparents. So he does not derive any
benefits through his family, and he has no fear
of persecution or torture if he goes back to
Mexico.
So there being no other relief available to him,
it is the order of the court that he be removed
from the United States to Mexico based on the
charges contained in the notice to appear.
In response to further questions, Gonzalez-Flores stated he
understood and accepted the IJ’s decision, and did not wish
to appeal it. Accordingly, the IJ ordered him removed.
Following his removal in 2004, Gonzalez-Flores illegally
reentered the United States in 2008. The government
reinstated his removal order, and removed him again on
February 29, 2008. In April 2013, he made a third illegal
entry and was arrested near the border between Mexico and
the United States. The government charged him with being
an alien found in the United States after removal, in violation
of 8 U.S.C. § 1326. He moved to dismiss the information
under § 1326(d), claiming his 2004 removal order was invalid
because the IJ had violated his due process rights by failing
to inform him that he might be eligible for voluntary
departure. The district court denied the motion on the ground
that no due process violation occurred, and even if there had
been such a violation, Gonzalez-Flores suffered no prejudice.
Gonzalez-Flores later pleaded guilty to the § 1326 violation
in a plea agreement. The plea agreement included an appeal
waiver, but Gonzalez-Flores retained the right to bring this
appeal of the district court’s denial of his motion to dismiss
the information. We have jurisdiction over his appeal under
28 U.S.C. § 1291.
UNITED STATES V. GONZALEZ-FLORES 7
II
We review de novo a district court’s denial of an alien’s
collateral challenge to a prior deportation order under
8 U.S.C. § 1326(d). United States v. Gonzalez-Valerio,
342 F.3d 1051, 1053 (9th Cir. 2003).
As originally enacted, § 1326 did not permit collateral
attacks on a prior order of deportation. United States v.
Mendoza-Lopez, 481 U.S. 828, 837 (1987). In response to the
Supreme Court’s determination that imposition of criminal
penalties based on a prior administrative proceeding violated
due process unless there was “some meaningful review of the
administrative proceeding,” id. at 837–38, Congress added
§ 1326(d), see United States v. Arias-Ordonez, 597 F.3d 972,
976 (9th Cir. 2010). As required by Mendoza-Lopez, this
section gives a defendant the opportunity to challenge the
validity of a prior deportation order in a criminal proceeding
arising under § 1326. An alien bringing such a collateral
attack is required to prove that: “(1) the alien exhausted any
administrative remedies that may have been available to seek
relief against the order; (2) the deportation proceedings at
which the order was issued improperly deprived the alien of
the opportunity for judicial review; and (3) the entry of the
order was fundamentally unfair.” 8 U.S.C. § 1326(d).
In applying § 1326(d), our cases generally focus on a
single type of defect in a deportation hearing: the IJ’s failure
to comply with 8 C.F.R. § 1240.11(a)(2). See, e.g., Vidal-
Mendoza, 705 F.3d at 1015. Under § 1240.11(a)(2), if an
alien seeking lawful permanent resident status applies to the
IJ for a waiver of a ground of inadmissibility, the IJ “shall
inform the alien of his or her apparent eligibility to apply for
any of the benefits enumerated in this chapter and shall afford
8 UNITED STATES V. GONZALEZ-FLORES
the alien an opportunity to make application during the
hearing.” 8 C.F.R. § 1240.11(a)(2).4 We deem the IJ to have
breached its obligation to inform an alien of “apparent
eligibility” when the IJ either fails to give the alien any
information about the existence of relief for which the alien
is “apparently eligible,” see United States v. Lopez-Velasquez,
629 F.3d 894, 901 (9th Cir. 2010) (en banc); United States v.
Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir. 2004); United
States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000), or
when the IJ erroneously tells the alien that no relief is
possible, see Arias-Ordonez, 597 F.3d at 977; see also United
States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006);
United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th
Cir. 2004); United States v. Leon-Paz, 340 F.3d 1003, 1005
(9th Cir. 2003). An IJ may also breach this regulatory
obligation by stating that the alien is eligible for relief, but
immediately negating that statement so that “it is as if he was
told that he did not qualify for this relief,” which puts the
alien in the same position as one who is never “made aware
that he has a right to seek relief.” United States v. Melendez-
4
8 CFR § 1240.11.(a)(2) provides:
2) In conjunction with any application for creation of
status of an alien lawfully admitted for permanent
residence made to an immigration judge, if the alien is
inadmissible under any provision of section 212(a) of
the Act, and believes that he or she meets the eligibility
requirements for a waiver of the ground of
inadmissibility, he or she may apply to the immigration
judge for such waiver. The immigration judge shall
inform the alien of his or her apparent eligibility to
apply for any of the benefits enumerated in this chapter
and shall afford the alien an opportunity to make
application during the hearing, in accordance with the
provisions of § 1240.8(d).
UNITED STATES V. GONZALEZ-FLORES 9
Castro, 671 F.3d 950, 954 (9th Cir. 2012) (per curiam)
(quoting Arrieta, 224 F.3d at 1079). Because an alien is
entitled to the procedure set forth in 8 C.F.R. § 1240.11(a)(2)
(as we have construed it), we have concluded that an IJ’s
failure to comply with this procedure violates the alien’s right
to procedural due process. See United States v. Muro–Inclan,
249 F.3d 1180, 1183–84 (9th Cir. 2001).
For purposes of § 1326(d), the IJ’s non-compliance with
§ 1240.11(a)(2) relieves the alien of the burden of proving
exhaustion of administrative remedies under § 1326(d)(1)
because “we deem the alien’s waiver of the right to an
administrative appeal to have been insufficiently considered
and intelligent.” Vidal-Mendoza, 705 F.3d at 1015 (internal
quotation marks omitted). The IJ’s regulatory error also
proves that the alien was improperly deprived of the
opportunity for judicial review pursuant to § 1326(d)(2),
because “an alien who is not made aware that he has a right
to seek relief necessarily has no meaningful opportunity to
appeal the fact that he was not advised of that right.” Arrieta,
224 F.3d at 1079. Finally, if the IJ’s error was prejudicial to
the alien, then the alien can establish that the removal order
“was fundamentally unfair” for purposes of 8 U.S.C.
§ 1326(d)(3). Vidal-Mendoza, 705 F.3d at 1016. To prove
prejudice, an alien seeking a discretionary form of relief must
make a “plausible showing” that an IJ presented with all of
the facts would exercise discretion in the alien’s favor.
United States v. Rojas-Pedroza, 716 F.3d 1253, 1263–64 (9th
Cir. 2013). “[T]he defendant bears the burden of proving
prejudice under § 1326(d)(3).” United States v. Valdez-
Novoa, 780 F.3d 906, 916–17 (9th Cir. 2015).
We employ a two-step process for determining whether
an alien claiming apparent eligibility for voluntary departure
10 UNITED STATES V. GONZALEZ-FLORES
has made this showing. Rojas-Pedroza, 716 F.3d at 1263.
First, we consider the positive and negative factors an IJ
would consider relevant to an exercise of discretion. See id.
at 1264–65. Positive factors include “long residence, close
family ties to the United States, and humanitarian needs.” Id.
at 1265. Negative factors include “the nature and underlying
circumstances of the deportation ground at issue; additional
violations of the immigration laws; the existence, seriousness,
and recency of any criminal record; and any other evidence
of bad character or the undesirability of the applicant as a
permanent resident.” Id. (quoting Matter of Arguelles-
Campos, 22 I. & N. Dec. 811, 817 (BIA 1999)).
Second, we determine whether, in light of these factors
and the circumstances of the alien’s case, the alien carried the
burden of proving “it was plausible (not merely conceivable)
that the IJ would have exercised his discretion in the alien’s
favor.” Id. at 1263 (internal quotation marks omitted).
“[E]stablishing ‘plausibility’ requires more than establishing
a mere ‘possibility.’” United States v. Barajas-Alvarado,
655 F.3d 1077, 1089 (9th Cir. 2011). In assessing whether
the alien carried this burden, we “focus on whether aliens
with similar circumstances received relief.” Rojas-Pedroza,
716 F.3d at 1263. “[T]he existence of a single case that is
arguably on point means only that it is ‘possible’ or
‘conceivable’ that a similarly situated alien would be afforded
voluntary departure. That is plainly insufficient . . . .”
Valdez-Novoa, 780 F.3d at 920–21.
III
We now turn to the facts of this case, and consider
whether Gonzalez-Flores can bring a collateral attack on his
prior deportation order under § 1326(d). Gonzalez-Flores
UNITED STATES V. GONZALEZ-FLORES 11
claims that he satisfies the three requirements for bringing
such a collateral attack because the IJ failed to inform him of
his “apparent eligibility to apply for” voluntary departure.
See 8 C.F.R. § 1240.11(a)(2).
As a threshold matter, the record makes clear (and
Gonzalez-Flores does not dispute) that the IJ in this case did
raise the issue of Gonzalez-Flores’s eligibility for voluntary
departure. Accordingly, Gonzalez-Flores relies on Melendez-
Castro, and argues that the IJ told him about the availability
of voluntary departure only to tell him he did not qualify
“almost in the same breath.” See 671 F.3d at 954.
We disagree. In Melendez-Castro, the IJ stated:
The only other application you may be
eligible for is something called voluntary
departure. Voluntary departure is available to
anyone who has not been convicted of an
aggravated felony. I can deny this in my
discretion and, and [sic ] even if you were to
apply for voluntary departure I wouldn’t
grant it to you. I don’t grant voluntary
departure to anyone convicted of a crime in
the United States, so I will be denying any
other case of voluntary departure that you
may make, but I need to go through that in the
records, so that you understand.
671 F.3d at 953 (emphasis added). Melendez-Castro
explained that this statement failed to meet the requirements
of 8 C.F.R. § 1240.11(a)(2) because the IJ stated that the alien
was eligible for relief, but “almost in the same breath” stated
the alien would not get the relief if he applied for it, and “[a]
12 UNITED STATES V. GONZALEZ-FLORES
reasonable person in Melendez–Castro’s position would have
been discouraged from applying for voluntary departure to an
extent that it is as if he was told that he did not qualify for this
relief.” Id. at 954 (emphasis added). We concluded that such
a complete and immediate negation violated the alien’s
procedural right to be informed of his apparent eligibility to
apply for relief under § 1240.11(a)(2). Id.
Unlike in Melendez-Castro, the IJ here did not state an
unqualified rule that an alien in Gonzalez-Flores’s situation
could not qualify for relief. See id. Nor did the IJ raise and
then immediately negate “almost in the same breath” the
possibility of voluntary departure. See id. Rather, the IJ
raised the availability of such relief and explored it. In effect,
the IJ deemed Gonzalez-Flores to have applied for voluntary
departure, weighed Gonzalez-Flores’s equities, and reached
a conclusion on his application.5
But even if the IJ’s detailed colloquy with Gonzalez-
Flores fell short of the requirements of § 1240.11(a)(2),
Gonzalez-Flores suffered no prejudice from any such error,
and therefore cannot demonstrate that the entry of the
removal order was “fundamentally unfair” for purposes of
§ 1326(d)(3). See Rojas-Pedroza, 716 F.3d at 1266–67.
Applying our two-part test for prejudice, we first consider the
positive and negative factors that are relevant to the IJ’s
5
Gonzalez-Flores also argues he was not given an opportunity to
“develop the issue” or “present evidence in support of the claim.” He
does not explain, however, how the IJ’s failure to give him such an
opportunity demonstrates that Gonzalez-Flores has met the requirements
of § 1326(d), and can therefore challenge the validity of the removal order.
Because Gonzalez-Flores has not “specifically and distinctly argued” this
matter in his appeal, we decline to reach this issue. Miller v. Fairchild
Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986).
UNITED STATES V. GONZALEZ-FLORES 13
exercise of discretion. Here, Gonzalez-Flores’s positive
equities are minimal: he lived in the United States for five
years, he attended high school from age 15 through the
eleventh grade, and he held a job for a few years from when
he left high school until he committed a robbery. Although
the IJ was not informed of Gonzalez-Flores’s high school
attendance and work history, these additional facts do not
contradict the IJ’s conclusion that Gonzalez-Flores’s equities
were “very few except for those normally associated with any
residence of any duration.” Because none of Gonzalez-
Flores’s family members were United States citizens or
lawful permanent residents, and because he resided in the
United States for only five years, he lacked close family ties
to the United States or a long residence here, the most typical
favorable equities deemed important in other cases. See
Arguelles-Campos, 22 I. & N. Dec. at 817. On the other
hand, his negative equities are significant. He was convicted
of robbery, which the IJ described as “a crime of violence as
well as a crime of theft,” for which he was sentenced to 210
days in jail, plus probation. He was also convicted of a prior
misdemeanor.
Second, we consider whether Gonzalez-Flores has carried
his burden of showing that “aliens with similar circumstances
received relief.” See Rojas-Pedroza, 716 F.3d at 1263. The
Ninth Circuit cases identified by Gonzalez-Flores involve
aliens who had far more significant positive equities, even
though they also had more significant negative equities.
Gonzalez-Flores has pointed to no case in which an alien with
so few positive equities has been granted relief. In United
States v. Alcazar-Bustos, we held that it was plausible a
defendant would be granted voluntary departure where the
defendant had lived in the United States since he was two
months old and had a United States citizen wife and child,
14 UNITED STATES V. GONZALEZ-FLORES
even though the defendant’s criminal history included firearm
possession convictions, and showed association with gang
members and prior drug use. 382 F. App’x 568, 569–71 (9th
Cir. 2010). Likewise, in United States v. Vasallo-Martinez,
we held it was plausible a defendant would be granted
voluntary departure where the defendant resided in the United
States for 21 years, had a United States citizen wife and child,
and owned a business, because these positive equities
outweighed the defendant’s four convictions for driving
under the influence and three unrelated misdemeanors.
360 F. App’x 731, 732–33 (9th Cir. 2009).
Gonzalez-Flores has also identified opinions in which the
BIA held that an alien was entitled to voluntary departure, but
each of those cases similarly involved aliens with significant
positive equities. In Matter of Gonzales-Figeroa, the BIA
upheld a grant of voluntary departure where the alien had
lived in the United States for fifteen years, had a pending visa
petition filed by his lawful permanent resident mother, and
his sister and two nieces were United States citizens. 2006
WL 729784, at *1–2 (BIA Feb. 10, 2006). Although the alien
in that case had four assault convictions and a conviction for
resisting arrest, the BIA credited the alien’s testimony that the
convictions were the result of a drinking problem, and that he
no longer drank after successfully completing a rehabilitation
program. Id. at *1. Similarly, in Matter of Hernandez-
Garcia, the BIA reversed a denial of voluntary departure
where the alien had a United States citizen wife and child,
even though the alien had impersonated a United States
citizen in order to procure a passport. 2012 WL 1705671, at
*1 (BIA Apr. 11, 2012); see also Matter of Pineda-
Castellanos, 2005 WL 3833024, at *1–2 (BIA Nov. 16, 2005)
(affirming an IJ’s grant of voluntary departure to an alien
with a lawful permanent resident wife and three children, but
UNITED STATES V. GONZALEZ-FLORES 15
indicating that such relief was barely warranted given the
negative equities of six criminal convictions). By contrast,
the BIA affirmed a denial of voluntary departure where the
alien was arrested twice for driving on a suspended license
and once for a DUI, despite the alien’s family ties to the
United States. Matter of Posadas-Posadas, 2012 WL
371659, at *1–2 (BIA Jan. 18, 2012).
As these cases illustrate, Gonzalez-Flores has failed to
carry his burden of showing that aliens with his scant positive
equities received relief. See Rojas-Pedroza, 716 F.3d at
1263. In fact, Gonzalez-Flores has failed to identify even a
single case on point, which in any event would be insufficient
on its own. See Valdez-Novoa, 780 F.3d at 920–21.
Because Gonzalez-Flores has failed to carry his burden of
showing a grant of relief was “plausible,” he has not
demonstrated that any error on the part of the IJ in informing
him of the availability of voluntary departure prejudiced him.
See id. at 921. A removal order is “fundamentally unfair” for
purposes of § 1326(d)(3) only if the alien “suffered prejudice
as a result of the defects” in the deportation proceeding,
United States v. Ubaldo–Figueroa, 364 F.3d 1042, 1048 (9th
Cir. 2004) (internal quotation marks omitted), and therefore
Gonzalez-Flores has not demonstrated that he satisfied this
requirement. Because Gonzalez-Flores has not met all of the
requirements of § 1326(d), he may not collaterally attack his
deportation order.
AFFIRMED.