FILED
NOT FOR PUBLICATION MAR 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50198
Plaintiff - Appellee, D.C. No. 3:11-cr-00676-JM-1
v.
MEMORANDUM*
JOSE DE JESUS GONZALEZ-
ARREOLA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted July 8, 2013
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Jose de Jesus Gonzalez-Arreola (Gonzalez) appeals the denial of his motion
to dismiss the indictment charging him with attempted reentry after a prior removal
in violation of 8 U.S.C. § 1326(a). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. An alien who “has been denied admission, excluded, deported, or
removed” commits a crime if the alien “enters, attempts to enter, or is at any time
found in” the United States. 8 U.S.C. § 1326(a). One of the elements of a § 1326
conviction is a prior order of removal. See id. § 1326(a)(1). An alien facing
criminal charges may initiate a collateral attack on the underlying removal order
pursuant to § 1326(d) if, among other things, “the deportation proceeding violated
the alien’s due process rights and the alien suffered prejudice as a result.” United
States v. Reyes-Bonilla, 671 F.3d 1036, 1043 (9th Cir.) (citation omitted), cert.
denied, 133 S. Ct. 322 (2012).
2. We agree with the district court that the termination of Gonzalez’s
temporary status returned him to the position of a person who entered without
inspection and who was thereby removable. See 8 C.F.R. § 245a.2(u)(4); see also
United States v. Hernandez-Arias, No. 12-50193, –F.3d– (9th Cir. March __ 2014).
Nor was Gonzalez eligible for relief from removal in 1996. See United States v.
Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1999), as amended (noting that an
alien must demonstrate prejudice by showing “plausible grounds for relief from
deportation”). Gonzalez’s convictions weighed heavily against the discretionary
grant of voluntary departure. See United States v. Rojas-Pedroza, 716 F.3d 1253,
1265-66 (9th Cir.) (cataloguing cases affirming denial of voluntary departure
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where petitioners had been convicted of less serious crimes than Gonzalez), cert.
denied, 134 S. Ct. 805 (2013). We reject Gonzalez’s argument, raised for the first
time on appeal, that he was eligible for a § 212(h) waiver. Gonzalez cannot show
plausible grounds for § 212(h) relief because he does not identify an “immediately
available” visa. See United States v. Moriel-Luna, 585 F.3d 1191, 1198 (9th Cir.
2009) (noting that “[b]ecause a visa petition had neither been filed [on the alien’s
behalf] at the time of his hearing nor could have been filed . . . the government has
persuasively shown that a visa was not immediately available” in satisfaction of the
§ 212(h) requirements). The immigration judge (IJ) was not required to advise
Gonzalez to marry his girlfriend for the purpose of obtaining an “immediately
available” visa. See id. at 1197-98 (noting that an IJ is not required to “act
creatively to advise an immigrant of ways in which his legal prospects at
forestalling deportation might improve with fundamental changes in his status”).
3. Because we resolve this case on the ground that Gonzalez was
removable and ineligible for plausible relief in 1996, we need not and do not
address any other issues raised by Gonzalez.
AFFIRMED.
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