Argued and Submitted, Pasadena, California: February
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:13-cr-01809-BEN-1. Roger T. Benitez, District Judge, Presiding.
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.
Michael A. Marks (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
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.
Before: Michael J. Melloy,[*] Jay S. Bybee,
and Sandra S. Ikuta, Circuit Judges.
[788 F.3d 1097]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).
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 § 211 and was sentenced to 210 days in county jail. 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.
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 ...