                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 19 2011

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-50506

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02343-L-1

  v.
                                                 MEMORANDUM*
JUAN MANUEL LACHINO-ESTRADA,

              Defendant - Respondent.


                   Appeal from the United States District Court
                     for the Southern District of California
                   M. James Lorenz, District Judge, Presiding

                     Argued and Submitted August 29, 2011
                              Pasadena, California

Before: SCHROEDER and GOULD, Circuit Judges, and SEEBORG, District
Judge.**

       During his prosecution for being a removed alien found within the United

States in violation of 8 U.S.C.§ 1326, appellant Juan Manuel Lachino-Estrada



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
(“Lachino”) moved to dismiss the indictment on grounds that the underlying

removal order was invalid. Following the denial of that motion, Lachino entered a

conditional guilty plea, reserving the right to appeal the denial of the motion to

dismiss. Lachino was thereafter sentenced to time served and a one-year period of

supervised release. Because we agree that the failure of the immigration judge

(“IJ”) to advise Lachino of his eligibility for voluntary departure and to give him

the opportunity to develop the issue constituted a violation of due process, we

vacate the sentence and remand to permit the district court to determine whether

this violation prejudiced Lachino.

       We review de novo a claim that defects in the underlying deportation

procedure rendered it invalid for use in criminal proceedings. United States v.

Ortiz-Lopez, 385 F.3d 1202, 1203 (9th Cir. 2004). A defendant charged with

illegal reentry after removal under § 1326 may collaterally attack the removal

order. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S. Ct. 2148, 95

L. Ed. 2d 772 (1987). To sustain a collateral attack, a defendant must show: (1)

that he or she exhausted all available administrative remedies to appeal the removal

order; (2) that the underlying removal proceedings at which the order was issued

“improperly deprived [him or her] of the opportunity for judicial review,” and; (3)

that “the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). “An


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underlying removal order is fundamentally unfair if: (1) [a defendant’s] due

process rights were violated by defects in the 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 quotation marks

omitted).

      Here, Lachino initially contends that the IJ incorrectly believed him to be

ineligible for voluntary departure, and therefore denied him relief as the result of

legal error, rather than through a proper exercise of discretion. Lachino has not

met his burden to show the IJ misunderstood the facts or the law regarding his

eligibility. See Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007) (noting the

“well established principle of federal law that administrative agencies are entitled

to a presumption that they ‘act properly and according to law.’” (citations

omitted)). There is no dispute, however, that the IJ did not expressly advise

Lachino he was entitled to request voluntary departure and did not offer him the

opportunity to present argument or evidence in support of such relief.

      The Government contends that as long as the IJ actually exercised discretion

in considering Lachino for voluntary departure (or, more precisely, if Lachino

cannot establish the contrary), then there are no grounds to vacate his conviction.

The precedents make clear, however, that “[t]he requirement that the IJ inform an


                                           3
alien of his or her ability to apply for relief from removal is mandatory, and failure

to so inform the alien of his or her eligibility for relief from removal is a denial of

due process that invalidates the underlying deportation proceeding.”

Ubaldo-Figueroa at 1050 (9th Cir. 2004) (internal citations and quotation marks

omitted); see also United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000)

(“[W]here the record contains an inference that the petitioner is eligible for relief

from deportation, the IJ must advise the alien of this possibility and give him the

opportunity to develop the issue.” (internal citations omitted).)

      The Government argues that an alien need not be expressly advised of the

potential availability of voluntary departure, provided the IJ in fact considered it.

The Government insists there is no meaningful distinction between an IJ saying,

“I’ve considered a few factors and will deny voluntary departure” as opposed to,

“you’re eligible for voluntary departure; however, after considering a few factors, I

am denying voluntary departure.” Even assuming an IJ only used the latter

formulation, however, the alien would at least be aware that he had been denied a

form of relief for which he or she was eligible, which could impact his or her

decision regarding waiving the right to appeal. See Ubaldo-Figueroa, 364 F.3d at

1049 (“We do not consider an alien’s waiver of his right to appeal his deportation

order to be considered and intelligent when the record contains an inference that


                                           4
the petitioner is eligible for relief from deportation, but the Immigration Judge fails

to advise the alien of this possibility.” (internal citations and quotation marks

omitted)). Moreover, even in the latter example given by the Government, the IJ

would have failed to comply with the requirement to “give [the alien] the

opportunity to develop the issue.” Arrieta, 224 F.3d at 1079 (internal citations and

quotation marks omitted).

      To support its contention that there is no such requirement notwithstanding

Ubaldo-Figueroa, Arrieta, and similar cases, the Government relies primarily on

the non-precedential decision in United States v. Quintana-Ramos, 375 Fed. Appx

703 (9th Cir. 2010) (unpublished). In that case, the court rejected an argument that

the IJ had improperly applied a “categorical policy” to deny voluntary departure,

and concluded instead that the judge had made the decision through an exercise of

discretion based on the particular facts before him. Id. at 705. The Quintana court

then held there had been no due process violation, without any discussion of

whether the defendant had been advised of his eligibility for voluntary departure

and given an opportunity to seek it. Id.

      In tacit recognition that the memorandum disposition contains no discussion

of the issue relevant to this case, the Government cites to the briefing presented in

Quintana to show that the appellant presented due process arguments similar to


                                           5
those made here. Sub silentio rejection of such arguments in a non-precedential

disposition, however, is not a basis for disregarding the clear rule expressed in

Ubaldo-Figueroa, Arrieta, and the other authorities cited therein. Accordingly, by

both failing to advise Lachino that he was eligible for voluntary departure and then

not giving him at least some meaningful opportunity to request it and to present

reasons why it would be warranted, the IJ failed to provide Lachino with the

process which he was due.

      To establish prejudice from the deprivation of his due process rights,

Lachino need show only that he “had a ‘plausible’ ground for relief from

deportation.” Ubaldo-Figueroa, 364 F.3d at 1050 (citation omitted). He “does not

have to show that he actually would have been granted relief.” Id. The

Government argues that this standard is not applicable to Lachino, because he is an

alien with what the Government asserts is a “serious criminal history.” As such, the

Government contends, Lachino must instead show “unusual or outstanding

equities” to be entitled to relief. See United States v. Gonzalez-Valerio, 342 F.3d

1051, 1056–57 (9th Cir. 2003) (noting that when seeking discretionary waiver

from deportation, an applicant “who has a serious criminal history must

demonstrate unusual or outstanding equities in order to receive relief.”). To the

extent the Government is suggesting this is an alternative standard, it


                                          6
misunderstands the relationship between the requirement for some aliens to

establish “unusual or outstanding equities” and the test applicable when a court

evaluates a collateral challenge to a prior removal order in cases like this one. The

standard is always whether the defendant has shown “plausible” grounds on which

he or she might have been granted relief by the IJ. When an alien’s criminal

history is such that he or she would have been required to demonstrate “unusual or

outstanding equities” to the IJ, that merely makes the proffered grounds for relief

less plausible. See Gonzalez-Valerio, 342 F.3d at 1057 (evaluating whether

defendant had shown plausible grounds for relief, given his serious criminal

history).

      Here, the district court did not reach the question of whether Lachino had

shown “plausible” grounds for relief, including the extent to which he might or

might not have been required to show unusual equities. Accordingly, remand is

appropriate to permit the district court to decide the prejudice issue in the first

instance. See United States v. Leon-Paz, 340 F.3d 1003, 1007 (9th Cir. 2003) (“We

. . . remand the case to the district court so that it can consider whether [defendant]

was prejudiced by the deprivation of his due process rights in his 1997 removal

proceeding. If he was not prejudiced, the district court may reinstate the




                                           7
conviction and sentence. If he was prejudiced, the district court must dismiss the

indictment.”)

      VACATED AND REMANDED.




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