United States v. Jose Zavala-Zavala

FILED
NOT FOR PUBLICATION JUN 06 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50298

Plaintiff - Appellee, D.C. No. 3:11-cr-05782-JM-1

v.
MEMORANDUM *
JOSE ARMANDO ZAVALA-ZAVALA,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding

Submitted June 4, 2013 **
Pasadena, California

Before: THOMAS, SILVERMAN, and FISHER, Circuit Judges.

José Zavala-Zavala appeals the district court’s denial of his 8 U.S.C. §

1326(d) motion to dismiss the indictment, which charged him with being found in

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the United States after removal in violation of 8 U.S.C. § 1326(a) and illegal entry

with a prior illegal reentry in violation of 8 U.S.C. § 1325. We affirm.

The immigration judge violated due process by not allowing Zavala-Zavala

to apply for voluntary departure before denying relief. See United States v.

Melendez-Castro, 671 F.3d 950, 954 (9th Cir. 2012) (per curiam). However,

Zavala-Zavala’s argument that he need not establish prejudice is without merit.

See id. at 954-55.

Contrary to Zavala-Zavala’s assertion, the district court applied the correct

prejudice test when it considered the favorable and unfavorable factors to

determine whether it was plausible that an immigration judge would have granted

Zavala-Zavala voluntary departure pursuant to 8 U.S.C. § 1229c(a). See id.;

United States v. Pallares-Galan, 359 F.3d 1088, 1104 (9th Cir. 2004). In light of

Zavala-Zavala’s more than 25 previous voluntary returns to Mexico and the

minimal positive equities, it was not plausible that an immigration judge would

have granted Zavala-Zavala voluntary departure in 2006.

AFFIRMED.