United States v. Rodrigo Guevara-Osuna

FILED
NOT FOR PUBLICATION NOV 19 2010

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. 09-50592

Plaintiff - Appellee, D.C. No. 3:08-cr-01545-JAH-1

v.
MEMORANDUM *
RODRIGO GUEVARA-OSUNA,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding

Argued and Submitted October 7, 2010
Pasadena, California

Before: FISHER and BYBEE, Circuit Judges, and STROM, District Judge.**

Rodrigo Guevara-Osuna (“Guevara”), a native of Mexico, appeals the

district court’s denial of his motion pursuant to 8 U.S.C. § 1326(d) to dismiss an

indictment charging him with being a deported alien found in the United States in

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
violation of 8 U.S.C. § 1326(a) and (b). The motion to dismiss was based on an

allegedly invalid deportation order. Specifically, Guevara claimed his immigration

judge (“IJ”) inadequately advised him of his eligibility for relief from deportation

pursuant to 8 U.S.C. § 1182(c) (1991) (“§ 212(c)”). He argued that he was eligible

for relief, the IJ violated his due process rights by failing to inform him of his

eligibility, and he suffered prejudice as a result. We affirm.

A motion to dismiss based on the collateral attack of an underlying

deportation order is reviewed de novo. United States v. Ubaldo-Figueroa, 364

F.3d 1042, 1047 (9th Cir. 2004). The district court’s findings of fact in connection

with a motion to dismiss are reviewed for clear error. United States v. Medina-

Villa, 567 F.3d 507, 511 (9th Cir. 2009).

Assuming a due process violation, Guevara has not suffered prejudice. To

establish prejudice, Guevara is required to show “unusual or outstanding equities,”

because Guevara had committed “a succession of criminal acts which together

establish a pattern of serious criminal misconduct.” In re Edwards, 20 I. & N. Dec.

191, 195-96 (BIA 1990). In light of the heightened standard, Guevara has not

shown that “an IJ could have concluded that his potential claim for relief from

deportation would be ‘plausible.’” United States v. Pallares-Galan, 359 F.3d

1088, 1104 (9th Cir. 2004). Guevara has shown only typical equities –

2
longstanding residence in the United States, family ties in the United States and

some employment in the United States – rather than unusual or outstanding

equities. These favorable considerations, moreover, would be weighed against the

substantial adverse factors that would have gone into the § 212(c) analysis,

particularly his pattern of criminal conduct and lack of documented rehabilitation.

It is therefore highly unlikely he would have been granted § 212(c) relief from

deportation. Thus, he has not established prejudice. See, e.g., United States v.

Gonzalez-Valerio, 342 F.3d 1051, 1057 (9th Cir. 2003). We accordingly affirm the

district court’s denial of Guevara’s motion to dismiss the indictment under

§ 1326(d).

AFFIRMED.