                                                                                      FILED
                               NOT FOR PUBLICATION
                                                                                      DEC 22 2015

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


                               FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                              No. 14-50334

                Plaintiff-Appellee,                     3:13-cr-04277-LAB-1

 v.                                                     MEMORANDUM*

 JOSE RAMOS MARTINEZ,

                Defendant-Appellant.


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

                        Argued and Submitted November 4, 2015
                                 Pasadena, California

Before: W. FLETCHER and GOULD, Circuit Judges, and CHRISTENSEN,**
Chief District Judge.

       Defendant-Appellant Jose Ramos Martinez appeals pursuant to 8 U.S.C.

§ 1326(d) the district court’s March 3, 2014 denial of his motion to dismiss the



         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
               The Honorable Dana L. Christensen, Chief District Judge for the U.S. District
Court for the District of Montana, sitting by designation.

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indictment. We reverse and remand so the district court may properly assess the

plausibility that Ramos would have been granted voluntary departure in his

underlying 2009 deportation proceeding.

      The district court erred by applying the wrong standard to determine if

Ramos was prejudiced by a due process violation. Under § 1326(d)(3), a

defendant must demonstrate prejudice resulting from a due process violation in

order to show that the underlying immigration hearing was fundamentally unfair.

United States v. Valdez-Novoa, 780 F.3d 906, 913 (9th Cir. 2014) (citing United

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

determined by asking if it is plausible that the immigration judge (“IJ”), had he

properly considered the defendant’s negative and positive equities, would have

granted voluntary departure. Valdez-Novoa, 780 F.3d at 914, 917 (citations

omitted).

      This plausibility standard is distinct from the “extreme hardship” standard

applied when aliens attempt to obtain waivers of inadmissibility to avoid

deportation pursuant to the Immigration and Nationality Act § 212(h)(1)(B),

codified at 8 U.S.C. § 1182(h)(1)(B). See Shooshtary v. INS, 39 F.3d 1049, 1050

(9th Cir. 1994); United States v. Contreras, 406 Fed. App’x 160 (9th Cir. 2010)

(unpublished). In this case, the district court correctly identified the plausibility


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standard. However, it erred when it assessed plausibility against the “extreme

hardship” standard under INA § 212(h)(1)(B). On remand, the district court

should apply Valdez-Novoa to determine whether it is plausible that the IJ would

have granted voluntary departure on the basis of Ramos’s positive and negative

equities and that as a result Ramos suffered prejudice. 780 F.3d at 916-17.

      REVERSED AND REMANDED.




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