                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                               FILED
                            FOR THE NINTH CIRCUIT                                DEC 15 2010

                                                                           MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-50555

              Plaintiff - Appellee,              D.C. No. 3:08-cr-03414-BTM-1

  v.
                                                 MEMORANDUM*
MARCO CONTRERAS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                           Submitted December 9, 2010**
                               Pasadena, California

Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.

       Marco Contreras entered a conditional guilty plea to the charge of being a

deported alien found in the United States, in violation of 8 U.S.C. § 1326. He

reserved the right to challenge on appeal the constitutional validity of the


        *
             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).
underlying order of removal that caused his deportation. The district court

correctly determined that the order of removal was indeed constitutionally

defective because the IJ failed to determine whether or not Contreras’s waiver of a

removal hearing was voluntary, knowing, and intelligent. However, the district

court denied Contreras’s motion to dismiss because Contreras could not establish

prejudice as required by United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048

(9th Cir. 2004) (a defendant attacking an underlying removal order must show

“prejudice as a result of the defects”) (internal quotation marks omitted). The

district court so concluded because (1) Contreras had provided no evidence of

“extreme hardship” that would have warranted a § 212(h) waiver of

inadmissibility, and (2) his conviction in Nevada of robbery with a deadly weapon

rendered him ineligible for voluntary departure.

      Contreras’s argument here is that the violation of his due process rights was

“so egregious that prejudice should be presumed.” In the alternative, he claims

that if required to show prejudice, he can.

      Contreras’s first argument, that prejudice must be presumed, is foreclosed by

Ubaldo-Figueroa. See also United States v. Proa-Tovar, 975 F.2d 592, 594-95 (9th

Cir. 1992) (en banc) (a deprivation of the right to judicial review of a deportation

order is of no consequence without a showing of prejudice); United States v.


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Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir. 1986) (prejudice from a constitutional

failure is required to render a deportation unlawful).

      Contreras claims that he has indeed made a “prima facie showing of

prejudice” just from the cold facts that he (1) is married to a U.S. citizen, (2) has

minor children living here, (3) has close family ties here and none in Mexico, (4)

has a step-father U.S. citizen, (5) has a mother who is a lawful permanent resident,

and (6) has been living here since he was a young child. Contreras is correct when

he says that a plausible ground for waiver might exist where deportation would

cause “great actual or prospective injury” or “extreme impact” on the citizen

family member, beyond the “common results of deportation.” Shooshtary v. INS,

39 F.3d 1049, 1051 (9th Cir. 1994) (internal quotation marks omitted). But, as the

district court observed, he has not adequately made such a showing here. He did

not offer any declarations or affidavits from family or give any substance to his

claim. See United States v. Arrieta, 224 F.3d 1076, 1082 (9th Cir. 2000). As the

district court appropriately said,

             Here, Defendant did not submit any evidence to show
             how his deportation will disrupt family unity. Although
             he is married to a U.S. citizen and has two U.S. citizen
             children, he has been incarcerated for much of the past
             two years (during which time he became married),
             raising questions about the nature and extent of his
             relationships with his wife and children. . . . Defendant


                                           3
             provides no evidence of any hardship his family faced
             during his absence, and offers no reasons why his family
             cannot relocate together to Mexico.

(Emphasis added).

      Our conclusion that Contreras is unable to demonstrate prejudice arising

from a defect in his removal order disposes of his assertion that he is eligible for an

adjustment of status under 8 U.S.C. § 1255(a). He is not.

      AFFIRMED.




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