                                                                           FILED
                            NOT FOR PUBLICATION                              JUL 08 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-50111

              Plaintiff - Appellee,              D.C. No. 3:09-cr-03326-LAB-1

  v.
                                                 MEMORANDUM *
MANUEL GONZALEZ-MELCHOR,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                        Argued and Submitted April 13, 2011
                               Pasadena, California

Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges.

       Because the parties are familiar with the factual and procedural history of

this case, we do not recount additional facts except as necessary to explain our

decision. In a separate opinion, we hold that the appellate waiver negotiated by the

district court is invalid and unenforceable. Here, we hold that the Immigration



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Judge (IJ) did not adequately advise Gonzalez-Melchor of his ability to apply for

voluntary departure, and we remand for the district court to determine whether

Gonzalez-Melchor was prejudiced by that failure.

       Because we conclude that Gonzalez-Melchor was not adequately advised of

his ability to apply for voluntary departure, his appellate waiver before the IJ is

invalid, and he is exempt from the exhaustion requirement of 8 U.S.C. y 1326(d).

See United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 n.2 (9th Cir. 2004) (per

curiam).

       An IJ must inform an alien of his or her 'apparent eligibility' for relief from

deportation. 8 C.F.R. y 1240.11(a)(2). 'The requirement that the IJ inform an

alien of his or her ability to apply for relief from removal is 'mandatory,' and

'[f]ailure to so inform the alien . . . is a denial of due process that invalidates the

underlying deportation proceeding.'' United States v. Ubaldo-Figueroa, 364 F.3d

1042, 1050 (9th Cir. 2004) (citation omitted) (alteration in original). Here, the IJ

stated, 'I'm not considering you for [voluntary departure] because I . . . would not

give it to you even if you asµed for it . . . .' The IJ therefore clarified that he would

not consider Gonzalez-Melchor for voluntary departure without conveying to him

that he was apparently eligible for such relief. The IJ's failure to so inform

Gonzalez-Melchor violated his due process rights because he was not granted an


                                             2
opportunity to develop a record for voluntary departure. See Campos-Granillo v.

INS, 12 F.3d 849, 852 (9th Cir. 1993).

      On this record, however, it is unclear whether Gonzalez-Melchor established

prejudice. See Ubaldo-Figueroa, 364 F.3d at 1048. 'To establish prejudice, [the

defendant] does not have to show that he actually would have been granted relief.

Instead, he must only show that he had a 'plausible' ground for relief from

deportation.' Id. at 1050 (citation omitted). We therefore vacate and remand for

the district court to address prejudice under the correct legal standard.

      VACATED and REMANDED.




                                           3
                                                                             FILED
United States v. Gonzalez-Melchor, No. 10-50111                                JUL 08 2011

                                                                         MOLLY C. DWYER, CLERK
BYBEE, Circuit Judge, dissenting:                                          U.S . CO U RT OF AP PE A LS




      I agree with the majority that Gonzalez-Melchor did not waive his right to

appeal, but I disagree that we cannot decide whether Gonzalez-Melchor suffered

prejudice from the IJ's failure to inform him of his eligibility for voluntary

departure. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir.

2004) ('Where . . . the record regarding the equities to be balanced . . . is complete

and the district court has already decided the issue of prejudice, we need not

remand to the district court for further consideration.'). The immigration judge

('IJ') asµed Gonzalez-Melchor the core questions relevant to voluntary departure,

giving him an opportunity to present the primary factors relevant to a voluntary

departure determination: U.S. family relations, employment, time in the United

States, and conviction record. See Campos-Granillo v. INS, 12 F.3d 849, 852 n.8

(9th Cir. 1993) (listing factors relevant to a determination of voluntary departure).

From the information Gonzalez-Melchor provided the IJ, we µnow he had few ties

to the United States, no family here, and that he had frequently crossed the border

without inspection. In my view, these equities are insufficient to support a

plausible claim for voluntary departure. Accordingly, I would not find prejudice,

and I would affirm.
