                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 18 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50198

              Plaintiff - Appellee,              D.C. No. 3:11-cr-00676-JM-1

  v.
                                                 MEMORANDUM*
JOSE DE JESUS GONZALEZ-
ARREOLA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Southern District of California
                 Jeffrey T. Miller, Senior District Judge, Presiding

                        Argued and Submitted July 8, 2013
                              Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.



       Jose de Jesus Gonzalez-Arreola (Gonzalez) appeals the denial of his motion

to dismiss the indictment charging him with attempted reentry after a prior removal

in violation of 8 U.S.C. § 1326(a). We affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     An alien who “has been denied admission, excluded, deported, or

removed” commits a crime if the alien “enters, attempts to enter, or is at any time

found in” the United States. 8 U.S.C. § 1326(a). One of the elements of a § 1326

conviction is a prior order of removal. See id. § 1326(a)(1). An alien facing

criminal charges may initiate a collateral attack on the underlying removal order

pursuant to § 1326(d) if, among other things, “the deportation proceeding violated

the alien’s due process rights and the alien suffered prejudice as a result.” United

States v. Reyes-Bonilla, 671 F.3d 1036, 1043 (9th Cir.) (citation omitted), cert.

denied, 133 S. Ct. 322 (2012).

      2.     We agree with the district court that the termination of Gonzalez’s

temporary status returned him to the position of a person who entered without

inspection and who was thereby removable. See 8 C.F.R. § 245a.2(u)(4); see also

United States v. Hernandez-Arias, No. 12-50193, –F.3d– (9th Cir. March __ 2014).

Nor was Gonzalez eligible for relief from removal in 1996. See United States v.

Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1999), as amended (noting that an

alien must demonstrate prejudice by showing “plausible grounds for relief from

deportation”). Gonzalez’s convictions weighed heavily against the discretionary

grant of voluntary departure. See United States v. Rojas-Pedroza, 716 F.3d 1253,

1265-66 (9th Cir.) (cataloguing cases affirming denial of voluntary departure


                                          2
where petitioners had been convicted of less serious crimes than Gonzalez), cert.

denied, 134 S. Ct. 805 (2013). We reject Gonzalez’s argument, raised for the first

time on appeal, that he was eligible for a § 212(h) waiver. Gonzalez cannot show

plausible grounds for § 212(h) relief because he does not identify an “immediately

available” visa. See United States v. Moriel-Luna, 585 F.3d 1191, 1198 (9th Cir.

2009) (noting that “[b]ecause a visa petition had neither been filed [on the alien’s

behalf] at the time of his hearing nor could have been filed . . . the government has

persuasively shown that a visa was not immediately available” in satisfaction of the

§ 212(h) requirements). The immigration judge (IJ) was not required to advise

Gonzalez to marry his girlfriend for the purpose of obtaining an “immediately

available” visa. See id. at 1197-98 (noting that an IJ is not required to “act

creatively to advise an immigrant of ways in which his legal prospects at

forestalling deportation might improve with fundamental changes in his status”).



      3.     Because we resolve this case on the ground that Gonzalez was

removable and ineligible for plausible relief in 1996, we need not and do not

address any other issues raised by Gonzalez.

      AFFIRMED.




                                           3
