NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50116
Plaintiff-Appellee, D.C. No. 3:16-cr-01339-H-1
v.
MEMORANDUM*
FRANCISCO BANUELOS-HARO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted July 12, 2018
Pasadena, California
Before: BERZON, FISHER,** and WATFORD, Circuit Judges.
Francisco Banuelos-Haro pleaded guilty to being found in the United States
after being previously removed under 8 U.S.C. § 1326(a) and (b), but preserved the
opportunity to appeal the district court’s denial of his motion to dismiss the
indictment. On appeal, Banuelos-Haro argues (1) that he was not removable as
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
charged in 2002 and 2005, and (2) that his 2002 removal order is invalid because
the Immigration Judge violated due process and Banuelos-Haro suffered prejudice.
We disagree on both points and affirm.
This Court has jurisdiction under 28 U.S.C. § 1291. We “review[] de novo
the denial of a motion to dismiss” an indictment under 8 U.S.C. § 1326, “when the
motion to dismiss is based on alleged due process defects in an underlying
deportation proceeding.” United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th
Cir. 2001). We also review de novo “[t]he determination whether a prior
conviction is an aggravated felony.” United States v. Bonilla-Montenegro, 331
F.3d 1047, 1049 (9th Cir. 2003).
To convict a defendant of illegal reentry under 8 U.S.C. § 1326, “the
Government must establish that the defendant ‘left the United States under order of
exclusion, deportation, or removal, and then illegally reentered.’” United States v.
Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (quoting United States v. Barajas-
Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011)). Defendants who are charged
under § 1326(a) and (b) may attack the validity of the predicate removal order
under § 1326(d). To mount a successful collateral attack on the removal order, the
defendant alien must show “(1) [he] exhausted any administrative remedies that
may have been available to seek relief against the order; (2) the deportation
proceedings at which the order was issued improperly deprived [him] of the
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opportunity for judicial review; and (3) the entry of the order was fundamentally
unfair.” 8 U.S.C. § 1326(d). Under our precedents, “if [the] Defendant was not
convicted of an offense that made him removable under the INA to begin with, he
is excused from proving the first two requirements,” United States v. Ochoa, 861
F.3d 1010, 1015 (9th Cir. 2017), and his removal is deemed fundamentally unfair
in satisfaction of the third. United States v. Aguilera-Rios, 769 F.3d 626, 630 (9th
Cir. 2014).
The 2002 Notice to Appear charged Banuelos-Haro with being removable
under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had previously been convicted of
an aggravated felony. The term “aggravated felony” includes “a theft offense
(including receipt of stolen property) or burglary offense for which the term of
imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). Banuelos-Haro’s
prior conviction was for receipt of stolen property under California Penal Code
§ 496.1 (now § 496(a)). He was sentenced to two years.
To determine whether a state conviction is an “aggravated felony,” courts
employ the categorical approach, comparing “the elements of the state statute of
conviction to the generic definition of a theft offense.” Verdugo-Gonzalez v.
Holder, 581 F.3d 1059, 1060 (9th Cir. 2009) (citing Taylor v. United States, 495
U.S. 575, 598-99 (1990)). This Court has held that receipt of stolen property under
§ 496.1 is a categorical match to “[t]he BIA’s reasonable interpretation of the
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elements of generic receipt of stolen property [under § 1101(a)(43)(G)].” United
States v. Flores, 901 F.3d 1150, 1160 (9th Cir. 2018); see also Verdugo-Gonzalez,
581 F.3d at 1061. Because Banuelos-Haro was removable as charged, his 2002
removal order supported the charges under § 1326(a) and (b).
Banuelos-Haro also does not convince this Court that the Immigration
Judge’s failure to inform him of his eligibility for relief in 2002 resulted in
prejudice and invalidated the removal order. Immigration Judges are required to
inform respondents in removal proceedings of their eligibility for relief, and failure
to do so is a due process violation that excuses the respondent from demonstrating
two of the required prongs of § 1326(d): exhaustion of administrative remedies and
deprivation of judicial review. United States v. Ubaldo-Figueroa, 364 F.3d 1042,
1049-50 (9th Cir. 2004). That leaves the third prong: fundamental unfairness. 8
U.S.C. § 1326(d)(3).
A defendant may show fundamental unfairness if “(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.” Ubaldo-Figueroa, 364 F.3d at 1048
(quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998)). A
defendant demonstrates prejudice if he “show[s] that he had ‘plausible grounds for
relief’ from the removal order.” Raya-Vaca, 771 F.3d at 1206 (quoting United
States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996)). To determine
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the plausibility of discretionary relief from removal, the Court first identifies
factors that would have been relevant to the adjudicator’s discretion, and then
decides if, “in light of the factors relevant to the form of relief being sought, and
based on the unique circumstances of the alien’s own case, it was plausible” that he
would have received discretionary relief. United States v. Rojas-Pedroza, 716 F.3d
1253, 1263 (9th Cir. 2013) (internal quotation marks omitted) (quoting Barajas–
Alvarado, 655 F.3d at 1089).
Because the Government conceded that the Immigration Judge violated due
process, Banuelos-Haro needed only to demonstrate that he suffered prejudice. To
do so, Banuelos-Haro argued that it was plausible he would have received relief
under the former § 212(c) of the INA, which provided for discretionary
cancellation of removal for lawful permanent residents. INS v. St. Cyr, 533 U.S.
289, 295 (2001). However, it is not plausible that Banuelos-Haro would have
received relief under § 212(c). That relief was determined in part by balancing
positive and negative factors. Yepes-Prado v. INS, 10 F.3d 1363, 1365-66 (9th Cir.
1993). Positive factors included family ties, duration of residence, hardship to the
individual and his family, service in the U.S. armed forces, employment history,
value to the community, rehabilitation in light of a criminal record, and evidence of
good character. Id. at 1366. Negative factors included the nature of the ground for
deportation, violations of immigration laws, a recent or serious criminal record,
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and other evidence of poor character. Id. To overcome a serious crime or pattern of
serious criminality, respondents were required to meet a heightened standard, and
“present[] unusual or outstanding equities to warrant discretionary relief.” Id.
Banuelos-Haro would have been subject to this heightened standard for
§ 212(c) relief, and it is not plausible that he would have demonstrated unusual or
outstanding factors warranting relief. Banuelos-Haro cited several positive factors,
including his sobriety starting in 1995, his efforts to help his brothers become
sober, and a large extended family living in the United States, but nothing unusual
or outstanding. Furthermore, the value of these positive equities was undermined
because Banuelos-Haro did not support them with evidence. See, e.g., United
States v. Gonzalez-Valerio, 342 F.3d 1051, 1057 (9th Cir. 2003).
Because Banuelos-Haro’s 2002 removal order was valid on account of his
conviction for receipt of stolen property under California Penal Code § 496.1, an
aggravated felony, and he was not prejudiced by the Immigration Judge’s due
process violation, we affirm the district court’s denial of his motion to dismiss the
indictment and his conviction under 8 U.S.C. § 1326.
AFFIRMED.
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United States v. Francisco Banuelos-Haro
Combined Opinion