NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 6 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50141
Plaintiff-Appellee, D.C. No.
2:12-cr-00843-DMG-1
v.
RAUL GUZMAN-IBAREZ, AKA Raul MEMORANDUM*
Guzman, AKA Raul Ibarez Guzman, Jr.,
AKA Raul Ibarez, AKA Raul Guzman
Ibarez, Jr., AKA Little Playboy, AKA
Manuel Torres, AKA Miguel Duran Torres,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Submitted December 12, 2019**
Pasadena, California
Before: BOGGS,*** WARDLAW, and BEA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Raul Guzman-Ibarez (“Guzman”), a native and citizen of Mexico, appeals the
district court’s judgment reinstating his conviction and sentence for illegal reentry
after deportation in violation of 8 U.S.C. § 1326. We review de novo a collateral
attack on a prior deportation order in a prosecution under 8 U.S.C. § 1326. United
States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014); United States v.
Vidal-Mendoza, 705 F.3d 1012, 1014 (9th Cir. 2013). We may affirm the district
court’s denial of a motion to dismiss an indictment on any basis supported by the
record. United States v. Davis, 336 F.3d 920, 922 (9th Cir. 2003).
1. As Guzman concedes, our recent decision in United States v. Martinez-
Hernandez, 932 F.3d 1198, 1205–07 (9th Cir. 2019), forecloses his argument that
his robbery conviction under California Penal Code section 211 does not qualify as
an aggravated felony. Accordingly, any error in the district court’s failure to consider
this issue was harmless.
2. Guzman next argues that the district court erred in concluding that he
was not prejudiced by the immigration judge’s (“IJ”) failure to advise him of the
potential availability of discretionary relief under former 8 U.S.C. § 1182(c)
(Immigration and Nationality Act § 212(c)). To establish prejudice, Guzman must
demonstrate that he had “plausible grounds” for discretionary relief from removal.
United States v. Esparza-Ponce, 193 F.3d 1133, 1136–37 (9th Cir. 1999).
Under procedures in effect at the time of Guzman’s removal proceedings, an
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IJ determined whether to provide relief under § 212(c) by balancing positive and
negative factors. Yepes-Prado v. INS, 10 F.3d 1363, 1365–66 (9th Cir. 1993).
Positive factors included: “1) family ties within the United States; 2) residence of
long duration in this country (particularly when residence began at a young age); 3)
hardship to the petitioner or petitioner’s family if relief [was] not granted; 4) service
in the United States armed forces; 5) a history of employment; 6) the existence of
business or property ties; 7) evidence of value and service to the community; 8) proof
of rehabilitation if a criminal record exists; 9) other evidence attesting to good
character.” Id. at 1366. Negative factors included the nature of the ground for
deportation, additional violations of the immigration laws, a recent or serious
criminal record, and other evidence of bad character. Id. When a defendant had
committed a serious crime or demonstrated a pattern of serious criminality, he had
to “make a heightened showing that his case present[ed] unusual or outstanding
equities to warrant discretionary relief.” Id.; see United States v. Vasquez-Gonzalez,
901 F.3d 1060, 1069 (9th Cir. 2018).
Here, Guzman would have had to make this heightened showing because the
succession of his criminal acts, taken together, established a pattern of serious
criminal misconduct. Guzman cited several positive factors warranting § 212(c)
relief, such as his strong family ties within the United States; that his parents brought
him to the United States at a young age; that his removal caused hardship for him
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and his family; and that he worked various jobs since a young age. But most of the
favorable evidence that Guzman submitted in the district court addressed events that
occurred after he was deported in 1999, which are not relevant to the prejudice
inquiry. Weighing the positive factors against the negative factors, it is not plausible
that the IJ would have found that Guzman’s case presented the “unusual or
outstanding equities” necessary to warrant discretionary relief under § 212(c) given
his extensive criminal history and the lack of evidence of rehabilitation. Guzman
therefore was not prejudiced by the IJ’s failure to advise him about the availability
of potential § 212(c) relief.
Because Guzman’s 1999 removal order was valid on account of his conviction
for robbery under California Penal Code section 211, an aggravated felony, and he
was not prejudiced by the IJ’s failure to advise him of the potential availability of
discretionary relief, the district court did not err in reinstating Guzman’s conviction
and sentence.
AFFIRMED.
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