                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            AUG 22 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.   14-50393

              Plaintiff-Appellee,                D.C. No.
                                                 3:12-cr-03370-LAB-1
 v.

RUFINO PERALTA-SANCHEZ,                          MEMORANDUM*

              Defendant-Appellant.



UNITED STATES OF AMERICA,                        No.   14-50394

              Plaintiff-Appellee,                D.C. No.
                                                 3:14-cr-01308-LAB-1
 v.

RUFINO PERALTA-SANCHEZ,

              Defendant-Appellant.


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

                        Argued and Submitted May 4, 2016
                              Pasadena, California

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: PREGERSON, BYBEE, and N.R. SMITH, Circuit Judges.

      Rufino Peralta-Sanchez was convicted of illegal entry in violation of 8

U.S.C. § 1325 and illegal reentry in violation of 8 U.S.C. § 1326. The predicate

for his illegal reentry count was his 8 U.S.C. § 1225 expedited removal in 2012.

Peralta-Sanchez argues that his expedited removal proceedings (“the proceedings”)

were fundamentally unfair, and thus cannot serve as the basis of the illegal reentry

count, because he was neither allowed to hire counsel nor advised of his right to

apply for withdrawal of his application for admission. We have jurisdiction under

18 U.S.C. § 1291, and we affirm. Because the revocation of his supervised release

condition was premised on the § 1326 conviction, we affirm the district court’s

revocation of this condition as well.

      To succeed in this appeal of the § 1326 criminal conviction, Peralta-Sanchez

must demonstrate that the 2012 removal order was “fundamentally unfair.” 8

U.S.C. § 1326(d). To do this, he must show that the proceedings violated his due

process rights and that he suffered prejudice as a result of that violation. United

States v. Raya-Vaca, 771 F.3d 1195, 1202 (9th Cir. 2014). We will assume for

purposes of this case only that Peralta-Sanchez had a due process right to retain

counsel at his own expense and to be advised by the government of the right to

seek withdrawal of admission under 8 U.S.C. § 1225(a)(4) during the proceedings,


                                           2
and thus that his due process rights were violated, leaving the question whether

Peralta-Sanchez proved that he was prejudiced by these violations.

      “An alien seeking to prove prejudice need not establish that he definitely

would have received immigration relief, but only that he had ‘plausible grounds’

for receiving such relief.” United States v. Barajas-Alvarado, 655 F.3d 1077, 1089

(9th Cir. 2011) (citation omitted). “[E]stablishing ‘plausibility’ requires more than

establishing a mere ‘possibility.’” Id. When the form of relief claimed is

discretionary, “the alien must ‘make a “plausible” showing that the facts presented

would cause the Attorney General to exercise discretion in his favor.’” Id. (citation

omitted). “[I]n 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 [must be]

plausible (not merely conceivable)” that relief would have been granted. Id.

(citation omitted) (second alteration in original). Peralta-Sanchez fails to carry this

burden as to both violations.

      Peralta-Sanchez’s claim of prejudice from failing to have the right to hire

counsel falters at its first hurdle. Peralta-Sanchez points to nothing in the record to

indicate that he actually would have hired an attorney had he had the right to do so.

See id. (noting that it “assum[ed] that [the alien] could establish that he would




                                           3
have” exercised, for prejudice-analysis purposes, the due process right he claimed

to have).

      Indeed, the facts in the record lead to the opposite conclusion. Peralta-

Sanchez was often arrested and deported, and he would illegally reenter the United

States shortly thereafter. What is more, though, are the circumstances temporally

surrounding the proceedings. The apprehension that led to the proceedings

occurred three days after he had last been removed. He was then removed again

and apprehended in the United States four days later. After being removed again,

Peralta-Sanchez illegally reentered the very next day. Peralta-Sanchez’s contention

that he would have hired a lawyer, prolonged his detention, and risked another

prison sentence rather than just take the expedited removal that allowed him to try

again the next day is simply implausible.

      Even if we assume that Peralta-Sanchez would have hired an attorney, his

three claims of prejudice based on what his attorney might have done fail.

      1. Peralta-Sanchez first claims that an attorney could have convinced the

Border Patrol agent conducting an interview aimed at established baseline facts to

exercise her discretion to transform the expedited removal proceedings into a full-

fledged hearing before an immigration judge, who in turn could have exercised his




                                            4
discretion either to rescind the 1999 removal or to offer nunc pro tunc relief.

Peralta-Sanchez has not shown either of these two steps to be plausible.

      Peralta-Sanchez’s attorney would first need to convince the Border Patrol

officer interviewing Peralta-Sanchez in § 1225 removal proceedings to interpret the

phrase, “the officer shall order the alien removed from the United States without

further hearing or review,” 8 U.S.C. § 1225(b)(1)(A)(i), to allow the officer to

exercise her discretion to order the alien into a full hearing before an immigration

judge. See also 8 C.F.R. § 235.3(b)(2)(ii). Nothing indicates that officers do that,

or that their procedures authorize them to do so. Even if the officer were inclined

to think she had this authority, Peralta-Sanchez has not demonstrated that she

would plausibly exercise it. Peralta-Sanchez’s litany of reentries, his substantial

criminal record—including arrests for arson and fake identification, several felony

or misdemeanor DUIs, and a felony conviction for a possession of

cocaine—significantly cuts against finding an exercise of discretion plausible.

      Even if an attorney could have gotten Peralta-Sanchez before an

immigration judge, Peralta-Sanchez has not “ma[d]e a ‘plausible’ showing that the

facts presented [by his circumstances] would cause the [immigration judge] to

exercise discretion in his favor.” Barajas-Alvarado, 655 F.3d at 1089 (citation

omitted). Although Peralta-Sanchez argues that he was inadmissible only because


                                          5
he entered the United States without valid entry documents, see 8 U.S.C.

§ 1182(a)(7), and that nunc pro tunc relief could cure this defect, Peralta-Sanchez

was also inadmissible because he had been convicted of the possession of a

controlled substance, cocaine.1 See id. § 1182(a)(2)(A)(i)(II); Cal. Health & Safety

Code § 11350; United States v. Garcia-Gonzalez, 791 F.3d 1175, 1179 (9th Cir.

2015) (“[The defendant’s] California state conviction for possession of cocaine

rendered him inadmissible . . . .”), cert. denied, 136 S. Ct. 862 (2016). The

Attorney General has no discretion to waive this bar, and Peralta-Sanchez fails to

explain how nunc pro tunc relief would do so either. See 8 U.S.C. § 1182(h)

(listing inapplicable exemptions).

      In sum, Peralta-Sanchez has not shown that either actor would have

plausibly exercised discretion on Peralta-Sanchez’s behalf had Peralta-Sanchez

been allowed to hire an attorney.

      2. Peralta-Sanchez next claims that an attorney could have helped him apply

for adjustment of status. But this is not true. Peralta-Sanchez could not have

sought adjustment of status because he was inadmissible for the reasons discussed


      1
        Peralta-Sanchez was also inadmissible because he was “convicted of 2 or
more offenses . . . for which the aggregate sentences to confinement were 5 years
or more.” 8 U.S.C. § 1182(a)(2)(B). While the Attorney General has the
discretion to waive this bar to admissibility, Peralta-Sanchez fails to explain why
the Attorney General plausibly would do so. See id. § 1182(h)(1)(A)(iii).
                                          6
above. See Garcia-Gonzalez, 791 F.3d at 1179 (“[The defendant’s] California

state conviction for possession of cocaine . . . rendered his father’s petition for

adjustment of status irrelevant.”).

      3. Finally, Peralta-Sanchez claims that an attorney could have helped him

apply for withdrawal relief. The Customs and Border Patrol has an Inspector’s

Field Manual that lays out six factors that should be used, non-exclusively, to

guide the granting of the Attorney General’s withdrawal relief. See Barajas-

Alvarado, 655 F.3d at 1090. These factors are: (1) the seriousness of the

immigration violation; (2) previous findings of inadmissibility against the alien; (3)

intent on the part of the alien to violate the law; (4) the ability to easily overcome

the ground of inadmissibility; (5) age or poor health of the alien; and (6) other

humanitarian or public interest considerations. CUSTOMS & BORDER PATROL,

INSPECTOR’S FIELD MANUAL § 17.2 (2006). Given Peralta-Sanchez’s long history

of flaunting our laws, both immigration and otherwise, and the dearth of equities

cutting in his favor, he has not established that withdrawal relief was plausible.

      As to the first factor, Peralta-Sanchez’s consistent inability to abide by our

immigration laws, despite several periods of imprisonment as a result of these

violations, is serious and demonstrates a clear intent to violate the law. See Raya-

Vaca, 771 F.3d at 1208 (finding that a “history of illegal reentries” made the


                                            7
defendant’s most recent violation “relatively serious”); Barajas-Alvarado, 655

F.3d at 1090 (finding that the fact the defendant was subject to two previous

expedited removal orders rendered the most recent violation “serious”).

      We find as well that the second and fourth factors, related to inadmissibility,

similarly weigh against Peralta-Sanchez. He had at least four findings of

inadmissibility, the finality of which are not affected by any subsequent changes in

the law. See Raya-Vaca, 771 F.3d at 1208; United States v. Aguilera-Rios, 769

F.3d 626, 633 n.3 (9th Cir. 2014). Moreover, the fact that, as discussed above,

Peralta-Sanchez could not have sought adjustment of status, and was therefore

unlikely to overcome the previous findings of inadmissibility, cuts against him.

See Garcia-Gonzalez, 791 F.3d at 1179.

      As to the fifth factor, age and poor health, Peralta-Sanchez was fifty-three

years old at the time of his expedited removal in 2012. Despite now claiming that

he “suffered many years of back-breaking labor in the fields,” in 2012, Peralta-

Sanchez was well enough to walk through the desert, hide from Border Patrol, and

say that he was in good health and planning to travel to Los Angeles to work. This

factor weighs against him as well.

      Finally, we address factor six, humanitarian considerations. On this point,

Peralta-Sanchez principally emphasizes his residence in the United States prior to


                                          8
his 1999 removal and the fact that he has three U.S. citizen children. However, in

Barajas-Alvarado, we concluded that an alien’s “ties to the United States” are “not

listed as considerations in the Inspector’s Field Manual and therefore carry little

weight.” 655 F.3d at 1091. From the record, Peralta-Sanchez’s family ties are also

somewhat unclear. Even assuming that this weighed in Peralta-Sanchez’s favor, it

is insufficient.

       For the same reasons, Peralta-Sanchez’s claim based on a failure to be

notified of the possibility of withdrawal relief—with or without the assistance of

an attorney—fails for lack of prejudice.

                                           ***

       Peralta-Sanchez failed to demonstrate prejudice for either alleged due

process violation during his 2012 expedited removal proceedings, foreclosing a

finding that the proceedings were fundamentally unfair. Because his challenge to

his 2012 expedited removal order fails, the order may serve as a predicate for his

2014 illegal reentry conviction under § 1326, which in turn supports the revocation

of his supervised release.

       AFFIRMED.




                                            9
                                                               FILED
United States v. Peralta-Sanchez, Nos. 14-50393, 14-50394
                                                               AUG 22 2017
Pregerson, J., concurring:
                                                            MOLLY C. DWYER, CLERK
                                                             U.S. COURT OF APPEALS
I concur in the result only.
