NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA, No. 12-50270 U.S. COURT OF APPEALS
Plaintiff - Appellee, D.C. No. 3:11-cr-01199-WQH-1
v.
MEMORANDUM*
GABRIEL VAQUERA NAVA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted November 6, 2013**
Pasadena, California
Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.
Defendant Gabriel Vaquera Nava timely appeals his conviction for one
count of being a deported alien found in the United States, in violation of 8 U.S.C.
§ 1326(a) and (b). On appeal, Defendant challenges the district court’s denial of
his motion to dismiss the indictment on the ground that the underlying deportation
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
was invalid. Reviewing de novo, United States v. Lopez-Velasquez, 629 F.3d 894,
896–97 (9th Cir. 2010) (en banc), we affirm.
Defendant fails to demonstrate that the removal order underlying his
conviction was "fundamentally unfair" for purposes of 8 U.S.C. § 1326(d)(3).
United States v. Cisneros-Resendiz, 656 F.3d 1015, 1018 (9th Cir. 2011).
Assuming, without deciding, that the immigration judge’s ("IJ") duty to inform,
under 8 C.F.R. § 1240.11(a)(2), includes such relief as withdrawal of an
application for admission, Defendant has failed to show prejudice, that is, that the
IJ would have plausibly granted Defendant’s withdrawal. Cisneros-Resendiz, 656
F.3d at 1019. In particular, Defendant fails to establish that factors "directly
relating to the issue of inadmissibility indicate that the granting of the withdrawal
would be in the interest of justice." 8 C.F.R. § 1240.1(d); see In re Gutierrez, 19 I.
& N. Dec. 562, 564–65 (B.I.A. 1988) (holding that equitable factors, such as lack
of a criminal record and lawful permanent resident status, are not directly related to
the issue of inadmissibility). The record before the IJ included evidence that
Defendant had attempted to enter the United States on a false claim of citizenship
and had engaged in intentional smuggling of a non-family member for
compensation. In consideration of these factors, "it is not plausible that the IJ
would have granted [Defendant] permission to withdraw his application for
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admission." Cisneros-Resendiz, 656 F.3d at 1023. Accordingly, Defendant was
not prejudiced by the IJ’s failure to inform him of that relief, and Defendant’s
underlying deportation order was not invalid. The district court did not err in
denying Defendant’s motion to dismiss the indictment.
AFFIRMED.
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