                                                                              FILED
                           NOT FOR PUBLICATION                                APR 19 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50033

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02238-JLS-1

  v.
                                                 MEMORANDUM*
MIGUEL ANGEL PONCE-ZUNIGA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                  Janis L. Sammartino, District Judge, Presiding

                      Argued and Submitted February 6, 2013
                               Pasadena, California

Before: PREGERSON, W. FLETCHER and NGUYEN, Circuit Judges.

       In March 2009, Miguel Ponce-Zuniga (“Ponce”), a former legal permanent

resident of the United States, was removed from the United States following an

aggravated felony conviction. In October 2010, Ponce was convicted of attempted




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
reentry by a removed alien under 8 U.S.C. § 1326. Ponce appeals this conviction.

We have jurisdiction under 28 U.S.C. § 1291. We affirm.

      A defendant may challenge an attempted reentry conviction by collaterally

attacking the underlying removal order pursuant to 8 U.S.C. § 1326(d). Section

1326(d) has three requirements: (1) the defendant must have exhausted

administrative remedies; (2) the deportation proceedings must have improperly

deprived the defendant of the opportunity for judicial review; and (3) the entry of

the order must have been fundamentally unfair. We review a collateral attack to a

removal order de novo. United States v. Lopez-Velasquez, 629 F.3d 894, 896 (9th

Cir. 2010) (en banc). The entry of the removal order is fundamentally unfair if

“(1) [the immigrant’s] due process rights were violated by defects in his underlying

deportation proceeding, and (2) he suffered prejudice as a result of the defects.”

United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (internal

citation and quotation marks omitted).

      Ponce fails to meet the third requirement of § 1326(d). Ponce’s due process

rights were violated by the IJ’s failure to obtain a valid waiver of his right to

counsel. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1103–05 (9th Cir. 2004)

(holding that an IJ’s failure to obtain a knowing and voluntary waiver of the right

to counsel from a pro se petitioner is a due process violation). The IJ failed to get a


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knowing waiver because the IJ did not ask Ponce if he wished to have an attorney,

did not determine whether good cause existed to grant Ponce more time to find an

attorney, and did not tell Ponce about the consequences of proceeding without an

attorney. See Ram v. Mukasey, 529 F.3d 1238, 1242 (9th Cir. 2008).

      Ponce was not prejudiced by this violation, however, because he did not

have a plausible ground for relief at the time of his removal hearing. See United

States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). Ponce argues he would

have sought a continuance at the hearing to seek state habeas relief based on the

ineffective assistance of counsel who represented him during his 2007 aggravated

felony proceedings. Ponce alleges that counsel in those proceedings failed to

inform him of the potential immigration consequences of a guilty plea and advised

him to plead guilty when he lacked the requisite knowledge element of the crime.

The Supreme Court held in Padilla v. Kentucky that the Sixth Amendment requires

defense counsel to “advise a noncitizen client that pending criminal charges may

carry a risk of adverse immigration consequences.” 559 U.S. 356, 130 S.Ct. 1473,

1483 (2010). But Padilla had not been decided at the time of Ponce’s 2009

removal hearing, and the Supreme Court recently held that Padilla does not apply

retroactively. Chaidez v. United States, 568 U.S. __, 133 S.Ct. 1103, 1105 (2013).

In light of this holding, as well as Ponce’s criminal history and the other charges


                                          3
that were dismissed as a result of the plea agreement, we cannot conclude that

Ponce’s ineffective assistance of counsel claim was a plausible ground for relief.

      AFFIRMED.




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