                                                                           FILED
                                                                            NOV 05 2010
                           NOT FOR PUBLICATION
                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 07-10603

              Plaintiff - Appellee,              D.C. No. CR-07-00471-NVW

  v.
                                                 MEMORANDUM *
ERNESTO CARDOZA-FUENTES, aka
Carlos E. Cardoza-Fuentes, aka Carlos
Ernesto Cardoza,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                     Argued and Submitted November 1, 2010
                            San Francisco, California

Before: ALARCÓN, RYMER, Circuit Judges, and TRAGER, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
      We must decide whether a criminal defendant charged with illegal reentry

into the United States can succeed in a collateral attack on a prior deportation order

by demonstrating that he had plausible grounds for relief under the now-repealed

Section 212(c) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. §

1182(c) (Supp. IV 1992). Although now repealed, Section 212(c) may still provide

a defendant facing deportation access to discretionary relief if his ground of

deportability has a corresponding ground of exclusion in Section 212(a) of the

INA. INS v. St. Cyr, 533 U.S. 289, 326 (2001).

                                           I

      On May 2, 1991, Appellant Ernesto Cardoza-Fuentes pled guilty in Los

Angeles Superior Court to second-degree robbery, Cal. Penal Code § 211 (1991),

with a firearms enhancement for personal use of a firearm, Cal. Penal Code §

12022.5(a) (1991). In February 1998, removal proceedings were instituted based

on this conviction. The Immigration Judge concluded that Cardoza-Fuentes was

removable on the basis of two grounds of deportation as set out in the INA: (1)

committing an aggravated felony amounting to a crime of violence, 8 U.S.C. §

1251(a)(2)(A)(iii) (1991); and (2) carrying a firearm in violation of any law, 8

U.S.C. § 1227(a)(2)(C) (1998). The Immigration Judge did not advise Cardoza-




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Fuentes whether discretionary relief might be available pursuant to Section 212(c).

Cardoza-Fuentes waived his right to appeal and was deported.

                                           II

      In November 2006, Cardoza-Fuentes was discovered in the United States.

He was indicted in April 2007, for illegal reentry after deportation, 8 U.S.C. §

1326(a) & (b)(2). Cardoza-Fuentes filed a motion to dismiss, collaterally attacking

his 1998 deportation on the ground that he was prejudiced by the Immigration

Judge’s failure to advise him of the availability of Section 212(c) relief. See

United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (stating

that the showing for a collateral attack requires a defendant to demonstrate, inter

alia, that (1) his “due process rights were violated by defects in the underlying

deportation proceeding,” and (2) “he suffered prejudice as a result of the defects”);

see also United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996)

(explaining that, in order to establish the requisite prejudice, an alien must

demonstrate that he had “plausible grounds for relief”).

      Cardoza-Fuentes maintained that he had plausible grounds for Section

212(c) relief because, at the time of his 1991 guilty plea, some immigration judges

and the Board of Immigration Appeals (“BIA”) were broadly interpreting the

comparable grounds test set out in Section 212(c). But see Abebe v. Gonzales


                                          -3-
(Abebe I), 493 F.3d 1092, 1099 (9th Cir. 2007) (“[T]he BIA and the courts have

regularly denied relief where the ground of deportability lacks a corresponding

ground of excludability.”), analysis adopted in Abebe v. Mukasey (Abebe II), 554

F.3d 1203, 1208 n.7 (9th Cir. 2009) (en banc) (per curiam). Relying on this

Court’s decision in Abebe I, the district court denied the motion to dismiss because

an aggravated felony crime of violence does not have a comparable ground of

exclusion under Section 212(a) and, thus, Cardoza-Fuentes would not have

qualified for Section 212(c) relief. Cardoza-Fuentes entered a conditional guilty

plea, which allowed him to appeal the district court’s denial of his motion to

dismiss. He was sentenced to twenty-four months of incarceration for the illegal

reentry after deportation charge.

                                          III

      A district court’s denial of a defendant’s collateral attack of an underlying

deportation order is reviewed by this Court de novo. Ubaldo-Figueroa, 364 F.3d

at 1047. Cardoza-Fuentes did not have plausible grounds to satisfy the prejudice

prong of the test for a collateral attack because our decision in Abebe I, 493 F.3d at

1104, conclusively establishes that he was statutorily ineligible for Section 212(c)

relief because his ground of deportability did not have a corresponding ground of

exclusion under Section 212(a). As this Court explained in Abebe I, well before


                                          -4-
the time of Cardoza-Fuentes’s guilty plea in 1991, “the BIA has resisted further

departures from the statutory text and consistently held that relief is available only

for aliens facing deportation on a ground with some tight connection to a ground of

excludability that could have been waived under § 212(c) . . . .” Id. at 1099. The

district court’s denial of Cardoza-Fuentes’s collateral attack of his prior

deportation order was consistent with the law of this circuit.

                                          IV

      Cardoza-Fuentes also contends that the denial of his motion to dismiss

violated his right to equal protection. This argument was rejected by this Court in

Abebe II, 554 F.3d at 1207. See Galbraith v. County of Santa Clara, 307 F.3d

1119, 1123 (9th Cir. 2002) (“Although a three judge panel normally cannot

overrule a decision of a prior panel on a controlling question of law, we may

overrule prior circuit authority without taking the case en banc when an

intervening Supreme Court decision undermines an existing precedent of the Ninth

Circuit, and both cases are closely on point.” (internal quotations and citations

omitted)).

      We AFFIRM the judgment of conviction because the district court did not

err in denying Cardoza-Fuentes’s motion to dismiss.




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