                                                                               FILED
                             NOT FOR PUBLICATION                                   JAN 15 2014

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



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 12-50461

                Plaintiff - Appellee,             D.C. No. 3:12-cr-02569-LAB-1

  v.
                                                  MEMORANDUM*
ERNESTO ALONSO HARO-MUNOZ,

                Defendant - Appellant.


                     Appeal from the United States District Court
                       for the Southern District of California
                      Larry A. Burns, District Judge, Presiding

                        Argued and Submitted August 27, 2013
                                Pasadena, California

Before: GOULD and RAWLINSON, Circuit Judges, and HUCK, District Judge.**



       Appellant Ernesto Haro-Munoz (Haro-Munoz), who was convicted of

attempted entry after deportation, challenges the district court’s denial of his


            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Paul C. Huck, Senior U.S. District Court Judge for the
Southern District of Florida, sitting by designation.
motion to dismiss the indictment. He collaterally attacks the underlying removal

as fundamentally unfair. Haro-Munoz contends his due process rights were

violated because: (1) there was no evidence that he received actual notice of the

contents of his Form I-860, and (2) agents failed to obtain his signature on the

Form I-860. He also contends that he suffered prejudice because it was plausible

that an immigration officer would have granted discretionary relief allowing Haro-

Munoz to withdraw his application for admission.

      To collaterally attack the underlying removal, Haro-Munoz must

demonstrate that: (1) he exhausted any available administrative remedies, (2) the

proceeding at which the removal order was issued improperly deprived him of the

opportunity for judicial review, and (3) “the entry of the order was fundamentally

unfair.” United States v. Rojas-Pedroza, 716 F.3d 1253, 1262 (9th Cir. 2013).1 A

defendant can meet these requirements by showing that the Immigration Judge

failed to inform the alien of his apparent eligibility for relief and that the alien had

plausible grounds for relief. See id.

      We can resolve this case on the second prong of the analysis because it was

implausible that an immigration officer would have granted discretionary relief


      1
       The Government does not dispute that Haro-Munoz has satisfied the first
two prongs, and therefore the only element in dispute is whether the underlying
removal order was fundamentally unfair.
                                            2
allowing Haro-Munoz to withdraw his application for admission. As discretionary

relief was implausible, any alleged due process violation did not result in prejudice

to Haro-Munoz. See id. at 1263.

      Of the six factors listed in the Inspector’s Field Manual (Field Manual) for

an immigration officer to consider in evaluating an alien’s request for permission

to withdraw an application for admission, see United States v. Barajas-Alvarado,

655 F.3d 1077, 1090 (9th Cir. 2011), two weigh in favor of Haro-Munoz because

there were no prior findings of inadmissibility against him and there is a

compelling humanitarian interest in keeping families united. However, four factors

weigh against Haro-Munoz. First, Haro-Munoz was caught entering the United

States by stealth, not innocently through ignorance, misinformation, or bad advice.

Thus, his immigration violation was serious. Second, Haro-Munoz deliberately

tried to evade inspection by crossing the Rio Grande River, rather than a port of

entry, indicating an intent to violate the law. Third, he was neither a youth nor

elderly at age 36, and does not allege that he was in poor health. Last, Haro-

Munoz could not easily overcome the grounds of inadmissibility because his

common-law wife could not file a I-130 Petition for Alien Relative request until he

first obtained an expungement of his felony drug conviction. See Vasquez de

Alcantar v. Holder, 645 F.3d 1097, 1105 (9th Cir. 2011); see also 8 U.S.C. §


                                          3
1182(a)(2)(A)(i)(II); Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. 2011)

(en banc) (discussing expungement of a conviction “for the purpose of a

disqualification”).

      AFFIRMED.




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