                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                                FILED
                            FOR THE NINTH CIRCUIT                                 OCT 24 2014

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

UNITED STATES OF AMERICA,                        No. 13-50104

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00245-AJB-1

  v.
                                                 MEMORANDUM*
OSCAR BAYARDO-GARCIA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                        Argued and Submitted May 15, 2014
                               Pasadena, California

Before: PREGERSON, REINHARDT, and NGUYEN, Circuit Judges.

       Oscar Bayardo-Garcia was charged with one count of being a deportable

alien found in the United States under 8 U.S.C. § 1326. He moved to dismiss the

indictment under 8 U.S.C. § 1326(d), and, after the court denied the motion, he

pleaded guilty to the charge but reserved the right to appeal the denial of his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
motion to dismiss. We review de novo the denial of a motion to dismiss an

indictment under 8 U.S.C. § 1326. United States v. Ubaldo-Figueroa, 364 F.3d

1042, 1047 (9th Cir. 2004).

1.    The basis for Bayardo-Garcia’s indictment under § 1326 is an order of

removal issued in 1999, when he was subjected to expedited removal proceedings.

“A defendant charged with illegal reentry under 8 U.S.C. § 1326 has a Fifth

Amendment right to collaterally attack his removal order because the removal

order serves as a predicate element of his conviction.” Id. at 1048. To sustain a

collateral attack on the removal order, Bayardo-Garcia must demonstrate that “the

proceeding that resulted in the expedited removal was fundamentally unfair in that

the deportation proceeding violated the alien’s due process rights and the alien

suffered prejudice as a result.” United States v. Barajas-Alvarado, 655 F.3d 1077,

1087 (9th Cir. 2011) (citation and internal quotation marks omitted); 8 U.S.C. §

1326(d)(3).1

2.    “Non-admitted aliens . . . who seek entry at the border are entitled only to

whatever process Congress provides.” United States v. Sanchez-Aguilar, 719 F.3d



      1
       Because administrative and judicial review of an expedited removal are
precluded by statute, an individual making a collateral attack on an underlying
expedited removal is excused from meeting the requirements of 8 U.S.C. §
1326(d)(1) and (2). Barajas-Alvarado, 655 F.3d at 1082.

                                         2
1108, 1112 (9th Cir. 2013) (citation and internal quotation marks omitted).

However, “[t]he Supreme Court has ruled that when Congress enacts a procedure,

aliens are entitled to it.” United States v. Gomez, 757 F.3d 885, 892 (9th Cir. 2014)

(quoting Barajas-Alvarado, 655 F.3d at 1084). The violation of immigration

regulations may invalidate an underlying deportation if “the regulation itself serves

a purpose of benefit to the alien” and “if the violation prejudiced the interests of

the alien which were protected by the regulation.” United States v. Ramos, 623

F.3d 672, 683 (9th Cir. 2010) (citations and internal quotation marks omitted). The

regulation governing expedited removal procedures, 8 C.F.R. § 1235.3(b)(2)(i),

requires, among other things, that “the examining immigration officer shall read

(or have read) to the alien all information contained on Form I-867A.” The I-867

Form contains, among other things, information about the nature and consequences

of the expedited removal proceedings, namely, that removal may result in being

“barred from entry for a period of five years or longer.”

3.    The district court held an evidentiary hearing to determine whether the

required procedures were followed and found that they were. This was clear error.

Although an immigration officer testified that the procedure was to show a video

advisal that covered the information contained on Form I-867A, each time he was

asked a specific question as to whether certain portions of the text on Form I-867A


                                           3
were contained in the video, he could not recall. Neither the video nor a transcript

of the video was entered into evidence. This is insufficient to show that the

process Bayardo-Garcia received complied with the requirements of the regulation.

4.    The regulations governing the expedited removal procedures are clearly

intended to benefit the alien, and the failure to comply with the regulations

adversely affected Bayardo-Garcia’s interests, resulting in a due process violation.

Ramos, 623 F.3d at 683. The failure to read Bayardo-Garcia portions of the I-

867A form deprived him of the knowledge that an expedited removal could bar

him for five years. Lacking this critical information, he failed to inquire about the

available alternatives to expedited removal that would allow him to avoid the five-

year bar. Although an immigration officer has no affirmative duty to inform an

applicant that he may ask to withdraw his application for admission, Sanchez-

Aguilar, 719 F.3d at 1112, he does have the responsibility to be honest and fair in

his dealings during the admission process. See INS Inspector’s Field Manual, §

2.4, available at Westlaw FIM–INSFMAN 2.4. Thus, had Bayardo-Garcia asked

the immigration officer about alternatives to expedited removal, the officer would

have been required to disclose them, including the possibility of withdrawing an

application for admission.




                                          4
5.    Here, had Bayardo-Garcia been informed of the drastic consequences of

expedited removal, as the regulation provides he must be, he likely would have

requested that his application be withdrawn. Moreover, there was a high likelihood

that such a request would have been granted; around the time of his expedited

removal, over 60% of applicants in Bayardo-Garcia’s position were allowed to

withdraw their applications. Congressional Research Service, Immigration Policy

on Expedited Removal of Aliens, 9 (Sept. 30, 2005) (available at

http://assets.opencrs.com/rpts/RL33109_20050930.pdf). While this statistic is not

determinative, Barajas-Alvarado, 655 F.3d at 1091, it enhances an already

“‘plausible showing’ that the specific facts of his case would warrant a favorable

exercise of discretion.”2 United States v. Corrales-Beltran, 192 F.3d 1311, 1318

(9th Cir. 1999).

6.    Bayardo-Garcia has made a “plausible showing” that an immigration officer

would have granted a request to withdraw his application for admission. Id. The

      2
        Bayardo-Garcia could also show prejudice under Matter of Gutierrez, 19 I.
& N. Dec. 562, 564-65 (BIA 1988), which instructs immigration officers to decide
whether to allow withdrawal by asking whether “factors directly relating to the
issue of his admissibility indicate that granting withdrawal would be in the interest
of justice.” Bayardo-Garcia had a visa immediately available to him through his
U.S. citizen wife, which weighs strongly in favor of granting withdrawal. “The
immediate possibility of obtaining immigration relief may directly relate to the
issue of an alien’s inadmissibility.” United States v. Cisneros-Resendiz, 656 F.3d
1015, 1022 (9th Cir. 2011).

                                          5
grant of such relief is discretionary. 8 U.S.C. § 1225(a)(4). Immigration officers

are guided in their exercise of discretion by the factors of the INS Inspector’s Field

Manual, § 17.2(a), available at Westlaw FIM–INSFMAN 17.2. Barajas-Alvarado,

655 F.3d at 1090. Those factors are: “(1) the seriousness of the immigration

violation; (2) previous findings of inadmissibility against the alien; (3) intent on

the part of the alien to violate the law; (4) ability to easily overcome the ground of

inadmissibility; (5) age or poor health of the alien; and (6) other humanitarian or

public interest considerations.” Id. (quoting the Field Manual). Many of these

factors weigh in favor of exercising discretion in Bayardo-Garcia’s favor. Unlike

Barajas-Alvarado, Bayardo-Garcia had no previous findings of inadmissibility. He

had a visa immediately available to him3 through his United States citizen wife,

who was the mother of his eight United States citizen children. Also unlike

Barajas-Alvarado, Bayardo-Garcia did not present false documents at the border;

he stated a false place of birth, but quickly recanted. This is not “obvious,

deliberate fraud.” Id. Bayardo-Garcia has thus shown “that it was ‘plausible’ that

he would have received some form of relief from removal had his rights not been

violated in the removal proceedings.” 757 F.3d at 898.

      3
       The government conceded at the evidentiary hearing that it did not have the
documents to prove that Bayardo-Garcia had been convicted of an aggravated
felony, which would affect his admissibility.

                                           6
7.    We REVERSE the district court’s denial of the motion to dismiss the

indictment, VACATE the guilty plea, and REMAND for proceedings in

accordance with this disposition.

REVERSED, VACATED, AND REMANDED.




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