                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 18 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50370

              Plaintiff - Appellee,              D.C. No. 3:13-cr-00130-WQH-1

 v.
                                                 MEMORANDUM*
JUAN JOSE GRANDE,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                    Argued and Submitted November 19, 2014
                              Pasadena, California

Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.

      Defendant-Appellant Juan Grande appeals the district court’s denial of his

motion to dismiss the indictment charging him with illegal reentry under 8 U.S.C.

§ 1326, by arguing that his underlying removal order was invalid. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      “We review de novo the denial of a motion to dismiss an 8 U.S.C. § 1326

indictment when the motion to dismiss is based on alleged due process defects in

an underlying deportation proceeding.” United States v. Ubaldo-Figueroa, 364

F.3d 1042, 1047 (9th Cir. 2004) (internal quotation marks and citation omitted).

      “In a criminal prosecution under § 1326, the Due Process Clause of the Fifth

Amendment requires a meaningful opportunity for judicial review of the

underlying deportation.” Id. (quoting United States v. Zarate-Martinez, 133 F.3d

1194, 1197 (9th Cir. 1998)). Grande “has a Fifth Amendment right to collaterally

attack his removal order because the removal order serves as a predicate element of

his conviction.” Id. To sustain a collateral attack of an expedited removal order, a

defendant must demonstrate that the “proceedings were fundamentally unfair,

meaning that the procedural errors he identifies deprived him of due process, and

he suffered prejudice as a result.” United States v. Barajas-Alvarado, 655 F.3d

1077, 1088 (9th Cir. 2011).

      Whereas Grande was not entitled to representation by counsel during his

expedited removal proceedings, see id., his other alleged due process violations

have merit. Grande argues that he suffered a due process violation during his

expedited removal because the immigration officials failed to notify him of the

allegations against him and failed to read him or allow him to read his sworn


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statement before signing it. Grande contends that the immigration officials’

mistakes violated agency regulation 8 C.F.R. § 235.3(b)(2)(i).

      We recently held that an individual’s “due process rights to notice and an

opportunity to respond were indeed violated during his expedited removal

proceedings” because, similar to Grande here, the individual alleged in a

declaration that he had not been read the charges and sworn statement before being

asked to initial them. United States v. Raya-Vaca, 771 F.3d 1195, 1205 (9th Cir.

2014). Like Raya-Vaca, Grande “asserted in a signed declaration that no

immigration officer explained to him either the nature of the removal proceedings

or that he could be ordered removed from the United States.” Id. Further, despite

having initialed forms explaining the removal process, both defendants maintained

that they did not understand what they were signing and “asserted that the

immigration officer neither read to him nor permitted him to review the

information in the sworn statement.” Id. Therefore, like Raya-Vaca, Grande

“established a due process violation and thus satisfied the first requirement for

showing that his 2011 removal order was fundamentally unfair.” Id. at 1206.

      To succeed on a collateral attack of an expedited removal order, Grande

must show not only that his due process rights were violated, but also that he was

prejudiced by the due process violation. Barajas-Alvarado, 655 F.3d at 1088.


                                          3
Grande “need not establish that he definitely would have received immigration

relief, but only that he had ‘plausible grounds’ for receiving such relief.” Id. at

1089 (quoting United States v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir.

1998)). The only relief available to Grande was withdrawal of his application for

admission. See id. at 1089-90; 8 C.F.R. § 1235.4 (stating that the Attorney General

may exercise his or her discretion to “permit any alien applicant for admission to

withdraw his or her application for admission in lieu of removal proceedings . . . or

expedited removal”).

      We use the six factors from the Inspector’s Field Manual used by

immigration officials to determine whether it is plausible that a noncitizen would

have been granted relief in the form of withdrawal of an application for admission.

Barajas-Alvarado, 655 F.3d at 1090. Again, Grande’s situation closely mirrors

that of Raya-Vaca, who we determined had established “a plausible basis for

relief.” Raya-Vaca, 771 F.3d at 1210.

      The first factor is neutral: while Grande did not present false documents

during his attempt to enter the United States, he had several previous illegal

reentries making his immigration violation “relatively serious.” Id. at 1208. The

second factor weighs in favor of Grande because it appears that he had no previous

findings of inadmissibility. Id. at 1207. Third, like Raya-Vaca, Grande’s previous


                                           4
unlawful entries may illustrate his intent to violate the law. Id. at 1208. Fourth,

Grande “may have had a relatively straightforward path to legal status” because his

long-time partner is a United States citizen, “a relevant consideration given the

[Field] Manual’s instruction to consider all facts and circumstances related to the

case.” Id. (internal quotation marks omitted). The fifth factor weighs against

Grande because at the time of the 2011 expedited removal he was 41 years old

with no indication of poor health. Id. Finally, the sixth factor of humanitarian and

public interest considerations weighs heavily in Grande’s favor because his long-

term partner and their two United States citizen children live in the United States.

See id. (“There is a compelling humanitarian interest in keeping families united.”

(internal quotation marks omitted)). Grande also came to the United States when

he was six years old where he attended elementary school through high school and

then worked full-time at the same company since 1987. Consideration of these

factors together suggest it is plausible that Grande would have received

immigration relief.

      Like Grande, Raya-Vaca had a criminal history. Id. at 1198-99. Grande’s

“misdemeanor criminal history is fairly minimal and does not appear to have much

bearing on the plausibility of relief.” Id. at 1209. Grande has demonstrated that he

had a “plausible basis for relief” and thus that he was prejudiced by the entry of the


                                           5
removal order. Id. at 1210. Further, “had he known he could withdraw his

application, he would have asked to do so in order to preserve his ability to reenter

the United States legally by avoiding the bar resulting from a removal order.” Id.

      For the reasons stated above, Grande’s 2011 removal order violated his due

process rights and he suffered prejudice as a result. Therefore, the 2011 removal

order “is invalid and cannot serve as the predicate for [Grande’s] conviction under

8 U.S.C. § 1326.” Id. at 1211. Because we reverse the district court’s denial of

Grande’s motion to dismiss the indictment charging him with illegal reentry due to

the invalidity of the underlying removal, we need not address Grande’s appeal of

the district court’s grant of the government’s motion to take a second set of

fingerprint exemplars.

REVERSED.




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