United States v. Gonzalez-Flores
804 F.3d 920
| 9th Cir. | 2015Background
- Gonzalez‑Flores, a Mexican national, entered the U.S. unlawfully in 1999 at age 15 and lived in the U.S. about five years before conviction and removal proceedings in 2004.
- In 2004 he was convicted of robbery and sentenced to jail; he had prior minor convictions. An IJ ordered him removed after a December 29, 2004 hearing at which Gonzalez‑Flores appeared pro se and said he did not wish to appeal.
- Gonzalez‑Flores later unlawfully reentered (2008 and 2018); the government reinstated and executed the prior removal order. He was charged under 8 U.S.C. § 1326 for being an alien found in the U.S. after removal.
- He moved to dismiss under 8 U.S.C. § 1326(d), arguing the 2004 removal order was invalid because the IJ failed to inform him of apparent eligibility for voluntary departure under 8 C.F.R. § 1240.11(a)(2).
- The district court denied the motion (no due‑process violation or, alternatively, no prejudice). Gonzalez‑Flores pleaded guilty but reserved the right to appeal the denial of the § 1326(d) motion; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ failed to inform Gonzalez‑Flores of apparent eligibility for voluntary departure under 8 C.F.R. § 1240.11(a)(2) | IJ’s colloquy did not adequately inform him of voluntary departure availability | Government: either IJ adequately informed him or any deficiency was not prejudicial | Court assumed (without deciding) possible regulatory shortfall but did not find it prejudicial |
| Whether Gonzalez‑Flores may collateral‑attack the 2004 removal order under 8 U.S.C. § 1326(d) | He satisfied § 1326(d) elements because IJ error deprived him of rights and he was prejudiced | Government: failed to show prejudice; therefore § 1326(d) not satisfied | Denied collateral attack — because Gonzalez‑Flores failed to show prejudice under § 1326(d)(3) |
| Standard and application for proving prejudice for discretionary relief (voluntary departure) | Argued plausibility of favorable exercise of discretion given his equities | Government: positive equities were minimal and negatives (robbery) were significant; no comparable grants exist | Court applied two‑step test (balance equities; show plausibility via similar grants) and held Gonzalez‑Flores failed to meet burden; no prejudice |
Key Cases Cited
- Vidal‑Mendoza v. United States, 705 F.3d 1012 (9th Cir. 2013) (explaining effect of IJ regulatory error on exhaustion and prejudice analysis under §1326(d))
- Rojas‑Pedroza v. United States, 716 F.3d 1253 (9th Cir. 2013) (two‑step test for prejudice when voluntary departure plausibly would have been granted)
- Valdez‑Novoa v. United States, 780 F.3d 906 (9th Cir. 2015) (plausibility requires more than a single arguable on‑point case)
- Mendoza‑Lopez v. United States, 481 U.S. 828 (1987) (criminal penalties based on prior deportation require meaningful review of administrative proceedings)
- Arrieta v. United States, 224 F.3d 1076 (9th Cir. 2000) (IJ’s failure to inform alien of relief can deprive alien of opportunity for judicial review)
- Ubaldo‑Figueroa v. United States, 364 F.3d 1042 (9th Cir. 2004) (prejudice required to show removal order was fundamentally unfair under §1326(d))
- Muro‑Inclan v. United States, 249 F.3d 1180 (9th Cir. 2001) (IJ noncompliance with §1240.11 violates due process)