FILED
NOT FOR PUBLICATION MAR 28 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50533
Plaintiff - Appellee, D.C. No. 3:09-cr-03837-JAH-1
v.
MEMORANDUM*
JOSE MERAZ-OLIVERA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted February 6, 2012
Pasadena, California
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.
Jose Meraz-Olivera appeals his jury conviction on a one count indictment
for violating 8 U.S.C. § 1326, and the district court’s denial of his motion to
dismiss the indictment. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court did not err in denying Meraz-Olivera’s motion to
dismiss the indictment as improperly predicated on the August 2000 expedited
removal order. We have jurisdiction to resolve his collateral challenge to that
order because “there must be some meaningful review” of that administrative
action where, as here, it plays “a critical role in the subsequent imposition of a
criminal sanction.” United States v. Mendoza-Lopez, 481 U.S. 828, 837 (1987).
Meraz-Olivera “can succeed in this collateral challenge only if he is able to
demonstrate that: (1) his due process rights were violated by defects in his
underlying deportation proceeding, and (2) he suffered prejudice as a result of the
defects.” United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir. 2000)
(quotation omitted). Neither element is satisfied here.
Meraz-Olivera was not denied due process by the immigration officer’s
failure to inform him that he had the right to withdraw the application for
admission “in the discretion of the Attorney General.” 8 U.S.C. § 1225(a)(4).
“[T]he Supreme Court has ruled that when Congress enacts a procedure, aliens are
entitled to it.” United States v. Barajas-Alvarado, 655 F.3d 1077, 1084 (9th Cir.
2011). Here, Meraz-Olivera received all of the process required under 8 U.S.C. §
1225(b)(1)(A)(I). Neither the statute, nor the regulations, require that an
immigration officer advise the alien of his opportunity to request withdrawal of his
2
application for admission, subject to the Attorney General’s discretion. See id.; 8
C.F.R. § 235.3 (procedures for expedited removal).
Meraz-Olivera suffered no prejudice because he had no plausible grounds
for relief. See Barajas-Alvarado, 655 F.3d at 1089 (“Where the relevant form of
relief is discretionary, the alien must make a plausible showing that the facts
presented would cause the Attorney General to exercise discretion in his favor.”)
(quotation omitted). Meraz-Olivera falsely claimed that he was a United States
citizen to the primary immigration officer. During a secondary inspection, he
admitted that he had lied and that he knew that his actions were illegal. An alien
who attempts to enter the United States by fraudulent means is ineligible for
withdrawal under 8 U.S.C. § 1225(a)(4). See In re Guttierez, 19 I. & N. Dec. 562,
565 (BIA 1988); INS Inspector’s Field Manual § 17.2(A) (2001) (“An expedited
removal order should ordinarily be issued, rather than permitting withdrawal, in
situations where there is obvious, deliberate fraud on the part of the applicant.”).
An alien does not have the right to withdraw his application for admission, 8
C.F.R. § 235.4; here the immigration officer exercised his discretion to proceed
with expedited removal.
2. Nor did the district court err by giving the Ninth Circuit model jury
instruction on reasonable doubt. See United States v. Velasquez, 980 F.2d 1275,
3
1278 (9th Cir. 1992) (reviewing reasonable doubt instruction de novo). We reject
Meraz-Olivera’s arguments that the model instruction: (1) improperly forecloses
speculation as a basis for having a reasonable doubt; (2) fails to direct jurors that
proof beyond a reasonable doubt cannot be based on speculation; and (3) misstates
the presumption of innocence because it instructs that reasonable doubt “may
arise,” from the evidence. The model instruction correctly states the law, and does
not “detract from the heavy burden suggested by the term ‘reasonable doubt’
standing alone.” Id.
AFFIRMED.
4
FILED
United States v. Meraz-Olivera, No. 10-50533 MAR 28 2012
MOLLY C. DWYER, CLERK
REINHARDT, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I agree with the majority that the district court did not err in instructing the jury
on reasonable doubt. I disagree, however, with the majority’s resolution of Meraz’s
due process claim. The Due Process Clause required that Meraz be notified of the
opportunity to ask to withdraw his application for admission, and Meraz was
prejudiced by the deprivation of that right. His conviction should be reversed.
The majority subverts the essential requirement of constitutional due process
in denying Meraz’s claim because he “received all of the process required under 8
U.S.C. § 1225(b)(1)(A)(I).” Memorandum at 2. It is true that “‘when Congress enacts
a procedure, aliens are entitled to it.’” Id. (quoting United States v. Barajas-Alvarado,
655 F.3d 1077, 1084 (9th Cir. 2011)). It is not true, however, that an alien’s due
process rights in the context of a criminal prosecution are limited to those prescribed
by statute or regulation. The Constitution requires that individuals receive process that
is “‘meaningful’ and ‘appropriate to the nature of the case’” before they are deprived
of any protected interest, independent of whether or not such process is mandated by
statutes or regulations. Bell v. Burson, 402 U.S. 535, 541-42 (1971) (citation omitted).
If compliance with statutory or regulatory procedures were itself sufficient to satisfy
the constitutional command, then the Due Process Clause would be deprived of all
substance.1
Had the majority properly conducted the due process analysis that it chose to
bypass, it would have concluded that Meraz was entitled to be informed that he had
the right to ask to withdraw his application for admission. We have held that aliens
have a due process right to be apprised of all forms of relief for which they might
reasonably be eligible. See United States v. Melendez-Castro, No. 10-50620, 2012 WL
130348, at *2 (9th Cir. Jan. 18, 2012); United States v. Arrieta, 224 F.3d 1076, 1079
(9th Cir. 2000). Moreover, all three factors of the due process standard of Mathews
v. Eldridge, 424 U.S. 319 (1976), weigh in Meraz’s favor: an alien’s interest in being
allowed to withdraw his application is immense, the failure to inform an alien of the
right to seek withdrawal poses an unacceptably high risk that the alien will be denied
a benefit that he would receive if he were to ask for it, and the administrative burden
of requiring such disclosure is minimal. See id. at 335.
1
Although “non-admitted aliens are not entitled to any procedure vis-à-vis their
admission or exclusion,” Barajas-Alvarado, 655 F.3d at 1084; see United States ex
rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950), such aliens are entitled to due
process review of their immigration proceedings when those proceedings form the
basis of a subsequent criminal prosecution. United States v. Mendoza-Lopez, 481 U.S.
828, 837-38 (1987); see Barajas-Alvarado, 655 F.3d at 1085 (applying Mendoza-
Lopez to expedited removal proceedings). To hold in the context of a criminal
prosecution that the Due Process Clause requires nothing more than compliance with
statutory or regulatory procedures is wholly inconsistent with Mendoza-Lopez.
-2-
I also disagree with the majority’s conclusion that Meraz was not prejudiced by
the failure to inform him of his right to seek withdrawal of his application. “An alien
seeking to prove prejudice need not establish that he definitely would have received
immigration relief, but only that he had ‘plausible grounds’ for receiving such relief.”
Barajas-Alvarado, 655 F.3d at 1089. In light of the agency’s criteria for allowing the
withdrawal of an application for admission, and in light of the fact that withdrawal is
offered to an overwhelming proportion of aliens who would otherwise be removed on
an expedited basis, Meraz might well have been permitted to withdraw his application
had he asked to do so. See Insp. Field Manual 17.2(a), available at FIM-INSFMAN
17.2 on Westlaw; U.S. Dep’t of Homeland Security, Office of Immigration Statistics,
Immigration Enforcement Actions: 2004 Annual Report 6 (2005) (“Approximately
184,000 foreign national[s] were determined to be inadmissible in 2004 for reasons
that made them subject to expedited removal. However, 129,000 of those aliens were
allowed to withdraw their application for admission.”). Meraz presented no false
documents to immigration officers, he had never previously been removed, and he has
three U.S. citizen children. Although an alien who has committed “obvious, deliberate
fraud” (such as the use of “counterfeit or fraudulent documents”) may not “ordinarily”
be allowed to withdraw his application for admission, id. (emphasis added), this
guidance hardly implies that withdrawal is to be denied in all such cases. Meraz,
-3-
moreover, did not use “counterfeit or fraudulent documents” at all; he merely stated
that he was a citizen of the United States before admitting at secondary inspection that
he was not. The majority’s rationale comes close to saying that no alien who is subject
to expedited removal can show that he might plausibly have been allowed to withdraw
his application, since any such alien must have tried to enter the country without legal
authorization. Such a holding is plainly inconsistent with the agency’s own statistical
report that a large majority of aliens in Meraz’s position are granted the relief of which
he was not even informed.
I therefore respectfully dissent.
-4-