                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        OCT 23 2018
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.   17-50116

                Plaintiff-Appellee,              D.C. No. 3:16-cr-01339-H-1

 v.
                                                 MEMORANDUM*
FRANCISCO BANUELOS-HARO,

                Defendant-Appellant.

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

                        Argued and Submitted July 12, 2018
                               Pasadena, California

Before: BERZON, FISHER,** and WATFORD, Circuit Judges.

      Francisco Banuelos-Haro pleaded guilty to being found in the United States

after being previously removed under 8 U.S.C. § 1326(a) and (b), but preserved the

opportunity to appeal the district court’s denial of his motion to dismiss the

indictment. On appeal, Banuelos-Haro argues (1) that he was not removable as


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
charged in 2002 and 2005, and (2) that his 2002 removal order is invalid because

the Immigration Judge violated due process and Banuelos-Haro suffered prejudice.

We disagree on both points and affirm.

      This Court has jurisdiction under 28 U.S.C. § 1291. We “review[] de novo

the denial of a motion to dismiss” an indictment under 8 U.S.C. § 1326, “when the

motion to dismiss is based on alleged due process defects in an underlying

deportation proceeding.” United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th

Cir. 2001). We also review de novo “[t]he determination whether a prior

conviction is an aggravated felony.” United States v. Bonilla-Montenegro, 331

F.3d 1047, 1049 (9th Cir. 2003).

      To convict a defendant of illegal reentry under 8 U.S.C. § 1326, “the

Government must establish that the defendant ‘left the United States under order of

exclusion, deportation, or removal, and then illegally reentered.’” United States v.

Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (quoting United States v. Barajas-

Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011)). Defendants who are charged

under § 1326(a) and (b) may attack the validity of the predicate removal order

under § 1326(d). To mount a successful collateral attack on the removal order, the

defendant alien must show “(1) [he] exhausted any administrative remedies that

may have been available to seek relief against the order; (2) the deportation

proceedings at which the order was issued improperly deprived [him] of the


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

unfair.” 8 U.S.C. § 1326(d). Under our precedents, “if [the] Defendant was not

convicted of an offense that made him removable under the INA to begin with, he

is excused from proving the first two requirements,” United States v. Ochoa, 861

F.3d 1010, 1015 (9th Cir. 2017), and his removal is deemed fundamentally unfair

in satisfaction of the third. United States v. Aguilera-Rios, 769 F.3d 626, 630 (9th

Cir. 2014).

      The 2002 Notice to Appear charged Banuelos-Haro with being removable

under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had previously been convicted of

an aggravated felony. The term “aggravated felony” includes “a theft offense

(including receipt of stolen property) or burglary offense for which the term of

imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). Banuelos-Haro’s

prior conviction was for receipt of stolen property under California Penal Code

§ 496.1 (now § 496(a)). He was sentenced to two years.

      To determine whether a state conviction is an “aggravated felony,” courts

employ the categorical approach, comparing “the elements of the state statute of

conviction to the generic definition of a theft offense.” Verdugo-Gonzalez v.

Holder, 581 F.3d 1059, 1060 (9th Cir. 2009) (citing Taylor v. United States, 495

U.S. 575, 598-99 (1990)). This Court has held that receipt of stolen property under

§ 496.1 is a categorical match to “[t]he BIA’s reasonable interpretation of the


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elements of generic receipt of stolen property [under § 1101(a)(43)(G)].” United

States v. Flores, 901 F.3d 1150, 1160 (9th Cir. 2018); see also Verdugo-Gonzalez,

581 F.3d at 1061. Because Banuelos-Haro was removable as charged, his 2002

removal order supported the charges under § 1326(a) and (b).

      Banuelos-Haro also does not convince this Court that the Immigration

Judge’s failure to inform him of his eligibility for relief in 2002 resulted in

prejudice and invalidated the removal order. Immigration Judges are required to

inform respondents in removal proceedings of their eligibility for relief, and failure

to do so is a due process violation that excuses the respondent from demonstrating

two of the required prongs of § 1326(d): exhaustion of administrative remedies and

deprivation of judicial review. United States v. Ubaldo-Figueroa, 364 F.3d 1042,

1049-50 (9th Cir. 2004). That leaves the third prong: fundamental unfairness. 8

U.S.C. § 1326(d)(3).

      A defendant may show fundamental unfairness if “(1) [his] due process

rights were violated by defects in his underlying deportation proceeding, and (2) he

suffered prejudice as a result of the defects.” Ubaldo-Figueroa, 364 F.3d at 1048

(quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998)). A

defendant demonstrates prejudice if he “show[s] that he had ‘plausible grounds for

relief’ from the removal order.” Raya-Vaca, 771 F.3d at 1206 (quoting United

States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996)). To determine


                                           4                                      17-50116
the plausibility of discretionary relief from removal, the Court first identifies

factors that would have been relevant to the adjudicator’s discretion, and then

decides if, “in light of the factors relevant to the form of relief being sought, and

based on the unique circumstances of the alien’s own case, it was plausible” that he

would have received discretionary relief. United States v. Rojas-Pedroza, 716 F.3d

1253, 1263 (9th Cir. 2013) (internal quotation marks omitted) (quoting Barajas–

Alvarado, 655 F.3d at 1089).

      Because the Government conceded that the Immigration Judge violated due

process, Banuelos-Haro needed only to demonstrate that he suffered prejudice. To

do so, Banuelos-Haro argued that it was plausible he would have received relief

under the former § 212(c) of the INA, which provided for discretionary

cancellation of removal for lawful permanent residents. INS v. St. Cyr, 533 U.S.

289, 295 (2001). However, it is not plausible that Banuelos-Haro would have

received relief under § 212(c). That relief was determined in part by balancing

positive and negative factors. Yepes-Prado v. INS, 10 F.3d 1363, 1365-66 (9th Cir.

1993). Positive factors included family ties, duration of residence, hardship to the

individual and his family, service in the U.S. armed forces, employment history,

value to the community, rehabilitation in light of a criminal record, and evidence of

good character. Id. at 1366. Negative factors included the nature of the ground for

deportation, violations of immigration laws, a recent or serious criminal record,


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and other evidence of poor character. Id. To overcome a serious crime or pattern of

serious criminality, respondents were required to meet a heightened standard, and

“present[] unusual or outstanding equities to warrant discretionary relief.” Id.

      Banuelos-Haro would have been subject to this heightened standard for

§ 212(c) relief, and it is not plausible that he would have demonstrated unusual or

outstanding factors warranting relief. Banuelos-Haro cited several positive factors,

including his sobriety starting in 1995, his efforts to help his brothers become

sober, and a large extended family living in the United States, but nothing unusual

or outstanding. Furthermore, the value of these positive equities was undermined

because Banuelos-Haro did not support them with evidence. See, e.g., United

States v. Gonzalez-Valerio, 342 F.3d 1051, 1057 (9th Cir. 2003).

      Because Banuelos-Haro’s 2002 removal order was valid on account of his

conviction for receipt of stolen property under California Penal Code § 496.1, an

aggravated felony, and he was not prejudiced by the Immigration Judge’s due

process violation, we affirm the district court’s denial of his motion to dismiss the

indictment and his conviction under 8 U.S.C. § 1326.

AFFIRMED.




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