                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 23 2012

                                                                          MOLLY C. DWYER, CLERK
UNITED STATES OF AMERICA,                        No. 11-50181               U.S. COURT OF APPEALS



              Plaintiff - Appellee,              D.C. No. 3:10-cr-00822-JLS-1

  v.
                                                 MEMORANDUM*
NAHIM AGUILAR-SANCHEZ,

              Defendant - Appellant.


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

                       Argued and Submitted April 10, 2012
                              Pasadena, California

Before: FERNANDEZ and SILVERMAN, Circuit Judges, and BLOCK, Senior
District Judge.**

       On March 10, 2010, Nahim Aguilar-Sanchez was indicted on one count of

being a deported alien found in the United States, in violation of 8 U.S.C. § 1326.

After he unsuccessfully moved to dismiss the indictment, he entered a conditional


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
                                          -2-

guilty plea and was sentenced principally to 84 months in prison. He now appeals

on the ground that his prior deportation was invalid. See 8 U.S.C. § 1326(d).

      Aguilar-Sanchez was previously deported as an alien present in the United

States without being admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). At a

1998 deportation hearing, the immigration judge asked Aguilar-Sanchez and three

other aliens the following question: “Do any of you have the money to pay your

way to pay voluntarily to Mexico? That would be about $225.” Aguilar-Sanchez

responded, “No.” The IJ then found that Aguilar-Sanchez was not eligible for any

relief from removal and issued an order of removal. Aguilar-Sanchez reentered the

United States in 2007. In 2009, the government reinstated the 1998 deportation

order and removed him to Mexico. He reentered again in January 2010, leading to

the indictment at issue here.

      The district court ruled that any error in the IJ’s failure to advise Aguilar-

Sanchez of the availability of voluntary departure in connection with the 1998

deportation was harmless because the record shows that Aguilar-Sanchez said he

did not have the funds to pay his own way home. The problem with the IJ’s

question is that it was not sufficiently specific. It could have been understood to be

inquiring whether the alien had the requisite cash on his person at that very
                                           -3-

moment. Aguilar-Sanchez’s response could not therefore be relied upon to

conclude that he lacked the means to depart the United States at his own expense.

      Aguilar-Sanchez suffered prejudice because voluntary departure was “a

plausible ground for relief from deportation.” See United States v. Ubaldo-

Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (internal quotation marks omitted).

      The 2009 removal is invalid because it rested solely on the defective 1998

removal order. See United States v. Arias-Ordonez, 597 F.3d 972, 978 (9th Cir.

2010) (Where “the original removal was statutorily and constitutionally flawed

. . . the reinstatement[] stand[s] on no stronger legal basis.”).

      Accordingly, we reverse the district court’s denial of the motion to dismiss

the indictment of Aguilar-Sanchez and vacate his conviction under § 1326.

      REVERSED AND VACATED.
