                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 22 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50536

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00319-RT-1

 v.
                                                 MEMORANDUM*
JONATHAN ALFREDO MERLOS, AKA
Jonathan Alfredo Merlos Galiano, AKA
Jonathan Merlos,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                 Robert J. Timlin, Senior District Judge, Presiding

                           Submitted October 20, 2015**
                               Pasadena, California

Before: IKUTA and OWENS, Circuit Judges and SESSIONS,*** District Judge.




        *
             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).
        ***
             The Honorable William K. Sessions III, District Judge for the U.S.
District Court for the District of Vermont, sitting by designation.
      Jonathan Alfredo Merlos appeals the district court’s order precluding

evidence and argument in support of a necessity defense, and denying his related

jury instructions. We have appellate jurisdiction under 28 U.S.C. § 1291.

      The district court did not err when it concluded that Merlos’s proffer was

insufficient to establish that a reasonable juror could conclude he had no available

legal alternatives to violating 8 U.S.C. § 1326(a), because Merlos “failed to avail

himself of a viable legal alternative, namely petitioning the Attorney General for

reentry.” United States v. Arellano-Rivera, 244 F.3d 1119, 1126 (9th Cir. 2001).

Merlos did not petition the Attorney General for humanitarian parole under 8

U.S.C. § 1182(d)(5)(A) when he was in Mexico, or at the border when he illegally

crossed into the United States, or during the thirty-three months he lived in the

country. Merlos’s speculation that the Attorney General would deny humanitarian

parole “in no way negate[s] the application process as a viable legal alternative.”

Arellano-Rivera, 244 F.3d at 1126 (alterations in original) (internal quotations

omitted). Nor is there any evidence that a petition for humanitarian parole would

have been futile, given the change in Merlos’s circumstances since the denial of his

2003 petition for withholding of removal, and given the difference in the eligibility

criteria between humanitarian parole and withholding. Compare 8 U.S.C. §

1182(d)(5)(A) with 8 U.S.C. § 1231(b)(3)(A). Therefore, the district court


                                          2
properly precluded him from presenting his necessity defense. Arellano-Rivera,

244 F.3d at 1126.

AFFIRMED.




                                        3
