FILED
NOT FOR PUBLICATION JUL 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50111
Plaintiff - Appellee, D.C. No. 3:09-cr-03326-LAB-1
v.
MEMORANDUM *
MANUEL GONZALEZ-MELCHOR,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted April 13, 2011
Pasadena, California
Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.
Because the parties are familiar with the factual and procedural history of
this case, we do not recount additional facts except as necessary to explain our
decision. In a separate opinion, we hold that the appellate waiver negotiated by the
district court is invalid and unenforceable. Here, we hold that the Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Judge (IJ) did not adequately advise Gonzalez-Melchor of his ability to apply for
voluntary departure, and we remand for the district court to determine whether
Gonzalez-Melchor was prejudiced by that failure.
Because we conclude that Gonzalez-Melchor was not adequately advised of
his ability to apply for voluntary departure, his appellate waiver before the IJ is
invalid, and he is exempt from the exhaustion requirement of 8 U.S.C. y 1326(d).
See United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 n.2 (9th Cir. 2004) (per
curiam).
An IJ must inform an alien of his or her 'apparent eligibility' for relief from
deportation. 8 C.F.R. y 1240.11(a)(2). 'The requirement that the IJ inform an
alien of his or her ability to apply for relief from removal is 'mandatory,' and
'[f]ailure to so inform the alien . . . is a denial of due process that invalidates the
underlying deportation proceeding.'' United States v. Ubaldo-Figueroa, 364 F.3d
1042, 1050 (9th Cir. 2004) (citation omitted) (alteration in original). Here, the IJ
stated, 'I'm not considering you for [voluntary departure] because I . . . would not
give it to you even if you asµed for it . . . .' The IJ therefore clarified that he would
not consider Gonzalez-Melchor for voluntary departure without conveying to him
that he was apparently eligible for such relief. The IJ's failure to so inform
Gonzalez-Melchor violated his due process rights because he was not granted an
2
opportunity to develop a record for voluntary departure. See Campos-Granillo v.
INS, 12 F.3d 849, 852 (9th Cir. 1993).
On this record, however, it is unclear whether Gonzalez-Melchor established
prejudice. See Ubaldo-Figueroa, 364 F.3d at 1048. 'To establish prejudice, [the
defendant] does not have to show that he actually would have been granted relief.
Instead, he must only show that he had a 'plausible' ground for relief from
deportation.' Id. at 1050 (citation omitted). We therefore vacate and remand for
the district court to address prejudice under the correct legal standard.
VACATED and REMANDED.
3
FILED
United States v. Gonzalez-Melchor, No. 10-50111 JUL 08 2011
MOLLY C. DWYER, CLERK
BYBEE, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
I agree with the majority that Gonzalez-Melchor did not waive his right to
appeal, but I disagree that we cannot decide whether Gonzalez-Melchor suffered
prejudice from the IJ's failure to inform him of his eligibility for voluntary
departure. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir.
2004) ('Where . . . the record regarding the equities to be balanced . . . is complete
and the district court has already decided the issue of prejudice, we need not
remand to the district court for further consideration.'). The immigration judge
('IJ') asµed Gonzalez-Melchor the core questions relevant to voluntary departure,
giving him an opportunity to present the primary factors relevant to a voluntary
departure determination: U.S. family relations, employment, time in the United
States, and conviction record. See Campos-Granillo v. INS, 12 F.3d 849, 852 n.8
(9th Cir. 1993) (listing factors relevant to a determination of voluntary departure).
From the information Gonzalez-Melchor provided the IJ, we µnow he had few ties
to the United States, no family here, and that he had frequently crossed the border
without inspection. In my view, these equities are insufficient to support a
plausible claim for voluntary departure. Accordingly, I would not find prejudice,
and I would affirm.