United States v. Fernando Perez-Hernandez
703 F. App'x 515
| 9th Cir. | 2017Background
- Perez-Hernandez, a deported alien, was convicted in federal court under 8 U.S.C. § 1326 for being found in the United States after removal.
- He challenges the indictment on the ground that his underlying immigration removal order was fundamentally unfair because the immigration judge (IJ) allegedly failed to inform him of eligibility for voluntary departure.
- The alleged due-process defect also included the government’s failure to produce the record of conviction to the IJ.
- The state criminal case record and plea agreement indicate Perez-Hernandez pleaded no contest to a charge tied to possession of methamphetamine (California Health & Safety Code § 11378), with a factual-basis stipulation referencing the police report.
- Defense counsel did not introduce the state change-of-plea transcript at immigration proceedings; Perez-Hernandez later provided the transcript showing he pleaded to an ‘‘information’’ rather than the ‘‘complaint.’'
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the removal order is "fundamentally unfair" under 8 U.S.C. § 1326(d) due to IJ’s failure to advise on voluntary departure and missing record of conviction | IJ failed to advise about voluntary departure; removal therefore violates due process | Even if due-process error occurred, Perez-Hernandez cannot show prejudice because relief (voluntary departure) was implausible given his conviction | Court held no prejudice; removal order not fundamentally unfair and motion to dismiss denied |
| Whether absence of record of conviction before IJ created plausible grounds for relief | Argues missing records made him potentially eligible for relief | Government points to plea and police report establishing drug-possession-for-sale conviction rendering relief unavailable | Court held the record showed conviction for an aggravated felony (methamphetamine possession for sale), so relief was only conceivable, not plausible; no prejudice |
| Whether counsel was ineffective for not introducing the state plea transcript | Transcript would show procedural irregularity (plea to information) that might undermine aggravated-felony finding | Transcript does not defeat the factual basis of the plea or the conviction for methamphetamine possession for sale | Court held no ineffective assistance because transcript would not have changed outcome or shown prejudice |
| Whether the defendant’s proof meets the "plausible grounds for relief" standard | Perez-Hernandez argues theoretical possibility suffices | Defendant contends more than theoretical possibility is required—some evidentiary basis needed | Court applied precedent requiring plausible evidentiary basis and found Perez-Hernandez failed to meet that standard |
Key Cases Cited
- United States v. Ortiz-Lopez, 385 F.3d 1202 (9th Cir.) (cited for discussion of vacatur and due-process challenges to removal orders)
- United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir.) (sets two-part test for fundamental unfairness: due-process violation plus prejudice)
- United States v. Bustos-Ochoa, 704 F.3d 1053 (9th Cir.) (rejects claim based on inconclusive record where government failed to proffer documents)
- United States v. Ramos, 623 F.3d 672 (9th Cir.) (requires showing of "plausible grounds for relief")
- United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir.) (prejudice requires more than theoretical possibility; some evidentiary basis needed)
- United States v. Almazan-Becerra, 537 F.3d 1094 (9th Cir.) (stands for use of plea agreement and factual-basis stipulations to establish conviction facts)
- United States v. Valdavinos-Torres, 704 F.3d 679 (9th Cir.) (discusses Section 11378 convictions as aggravated felonies limiting immigration relief)