                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                    No. 18-1635
                                  ______________

                         UNITED STATES OF AMERICA,

                                          v.

                        ALEJANDRO MEZA-MAGALLON,
                           a/k/a Alejandro Mesa-Cruz,
                            a/k/a Leonardo Hernandez,
                             a/k/a Mario Luna-Gomez,
                                                      Appellant
                                 ______________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                       (D.C. Crim. No. 2-17-cr-00379-001)
                    Honorable R. Barclay Surrick, District Judge
                                 ______________

                            Argued on February 13, 2019

           BEFORE: HARDIMAN, SCIRICA, and COWEN, Circuit Judges

                                 (Filed: July 2, 2019)

Keith M. Donoghue
       Assistant Federal Defender
Brett G. Sweitzer
       Assistant Federal Defender
       Chief of Appeals
Leigh M. Skipper
       Chief Federal Defender
Jacob Schuman       [ARGUED]
       Research and Writing Attorney
Federal Community Defender Office for Eastern District
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
              Counsel for Appellant

William M. McSwain
       United States Attorney
Robert A. Zauzmer
       Assistant United States Attorney
       Chief of Appeals
Bernadette McKeon           [ARGUED]
       Assistant United States Attorney
Josh A. Davison
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
              Counsel for Appellee

                                      ______________

                                         OPINION*
                                      ______________


COWEN, Circuit Judge.

       Alejandro Meza-Magallon appeals from the criminal judgment entered by the

United States District Court for the Eastern District of Pennsylvania. Meza specifically

challenges the District Court’s denial of his motion to dismiss the charge of illegal

reentry on the basis of a collateral challenge to the underlying deportation order. Because

we agree with the District Court that Meza has failed to establish the requisite prejudice,

we will affirm.




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

                                             2
                                                I.

       Meza was indicted on one count of illegal reentry under 8 U.S.C. § 1326(a) and

(b)(1) and a single count of interfering with a United States Immigration and Customs

Enforcement officer while in the performance of his duties under 18 U.S.C. § 111(a)(1).

8 U.S.C. § 1326(d) permits a collateral challenge to the validity of the underlying

deportation order in certain limited circumstances. Citing this subsection, Meza filed a

motion to dismiss the illegal reentry charge.

       Specifically Meza challenged his deportation order, entered in 2002, on the

grounds that the “Stipulated Request for Issuance of Final Order of Removal, Waiver of

Appearance and Hearing” (“Stipulated Request”) he signed constituted an invalid waiver.

He argued that, as a minor, he was deprived of a fundamentally fair hearing because no

notice was provided to his parents or guardians. Furthermore, he asserted that he was

incapable of understanding the Stipulated Request because it was written in English.

These errors purportedly deprived Meza of an opportunity to request voluntary departure.

       At the evidentiary hearing, Meza testified on his own behalf, and the government

presented the testimony of Jay Varda, an immigration agent. The District Court denied

Meza’s motion to dismiss. It rejected his waiver and parental notice arguments,

determining that he failed to satisfy the three statutory prerequisites for a collateral attack

on his prior deportation order. With respect to the “fundamental unfairness” requirement,

the District Court considered whether Meza established that the alleged fundamental

defect resulted in prejudice. “To show prejudice under § 1326(d)(3), an alien must

establish that there was a reasonable likelihood that the result would have been different

                                                3
if the error in the deportation proceeding had not occurred.” (A34 (citing United States v.

Charleswell, 456 F.3d 347, 361-62 (3d Cir. 2006)).) While acknowledging that he “was

statutorily eligible for voluntary departure” (A35), the District Court determined that

Meza “cannot establish that there was a reasonable likelihood he would have been

granted voluntary departure relief.” (A37.) The District Court viewed Meza as an

unsympathetic figure with “significant negative equities and few positive ones.” (A38.)

In short, Meza’s positive equities (i.e., he had lived in the United States for three years,

and his mother, aunts, and uncles resided here) were outweighed by a number of

significant negative factors (including Meza’s state convictions for burglary and battery,

his gang membership, the fact he was not married to anyone in the United States, his lack

of children, and his evidentiary hearing testimony indicating that he was unemployed,

had not attended any school in the United States, and could not speak English).

       Meza pled guilty to both charges, while reserving the right to appeal the District

Court’s denial of his motion to dismiss. He was sentenced to 16 months of imprisonment

on the illegal reentry count together with a concurrent term of 12 months on the other

charge. The District Court also imposed a term of three years of supervised release.




                                              4
                                            II.

      Codifying United States v. Mendoza-Lopez, 481 U.S. 828 (1987), Congress

enacted § 1326(d):

      (d) LIMITATION ON COLLATERAL ATTACK ON UNDERLYING
      DEPORTATION ORDER

      In a criminal proceeding under this section, an alien may not challenge the
      validity of the deportation order described in subsection (a)(1) or subsection
      (b) unless the alien demonstrates that—

          (1) the alien exhausted any administrative remedies that may have
          been available to seek relief against the order;

          (2) the deportation proceedings at which the order was issued
          improperly deprived the alien of the opportunity for judicial review;
          and

          (3) the entry of the order was fundamentally unfair.

Meza and the government focus on the third “fundamental unfairness” requirement. “To

establish that a deportation proceeding was fundamentally unfair, an alien must show

both that there was a fundamental defect in the proceeding and that the defect caused him

prejudice.” 1 Richardson v. United States, 558 F.3d 216, 224 (3d Cir. 2009) (citing

Charleswell, 456 F.3d at 358).

      Initially, the parties vigorously dispute whether or not Meza has established that

the 2002 deportation proceeding violated his due process rights and was fundamentally

unfair because the government deported him pursuant to his waiver without first

      1
         The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231,
and we possess appellate jurisdiction under 28 U.S.C. § 1291. We exercise de novo
review over the District Court’s legal conclusions disposing of Meza’s § 1326(d)
challenge. See, e.g., Charleswell, 456 F.3d at 351. The District Court’s findings of fact
are reviewed for clear error. See, e.g., id.
                                            5
providing notice of the proceeding to his mother. We need not—and do not—decide this

question because we agree with the government and the District Court that Meza has

failed to establish that the absence of parental notice prejudiced him.

       “[W]e agree with the majority of courts that prejudice requires a reasonable

likelihood that the result would have been different if the error in the deportation

proceeding had not occurred.” Charleswell, 456 F.3d at 361-62 (footnote omitted).

Accordingly, we rejected the Ninth Circuit’s lower “plausibility” standard (in which the

defendant need only show that there was some plausible legal challenge that could have

been pursued had there been no defect).2 Id. Meza argues that, if his mother had

received notice, she would have advised him not to waive his right to challenge his

removal and to instead seek voluntary departure under 8 U.S.C. § 1229c (or at the very

least, she could have helped him secure counsel who would have given him the same

advice).3 The parties agree on the basic principles governing voluntary departure


       2
         Meza asks us to treat the alleged defect here as presumptively prejudicial. (See,
e.g., Appellant’s Brief at 28 (“In view of minors’ incapacity to navigate immigration
proceedings in the absence of adult guidance, allowing a minor to waive his right to
contest removal without notice to his known U.S.-resident mother is one such defect
[triggering a presumption of prejudice].”).) In a footnote, we acknowledged that some
courts have recognized that the “reasonable likelihood” standard is not necessarily fixed
and that some procedural defects may be so critical to procedural legitimacy (and the
difficulty of actually proving prejudice so great) that the defendant need not establish a
reasonable likelihood of a different result. Charleswell, 456 F.3d at 362 n.17. However,
Meza does not cite to any case law applying a presumption of prejudice where the
government purportedly failed to provide adequate notice before obtaining a waiver of a
minor’s right to challenge removal. In fact, neither Meza nor Charleswell have identified
any decision actually applying this presumption (as opposed to indicating that there may
be some hypothetical case warranting such a presumption). See id.
       3
         Voluntary departure is generally preferable to removal. See, e.g., Perez-Funez v.
Dist. Director, I.N.S., 619 F. Supp. 656, 659 (C.D. Cal. 1985) (“Its advantages to the
                                              6
requests, although they disagree as to Meza’s chances of obtaining such relief. The

decision whether to grant voluntary relief turns in large part on administrative discretion.

See, e.g., In re Arguelles-Campos, 22 I. & N. Dec. 811, 817 (BIA 1999). “[M]any factors

may be weighed in exercising discretion with voluntary departure applications, including

the nature and underlying circumstances of the deportation ground at issue; additional

violations of the immigration laws; the existence, seriousness, and recency of any

criminal record; and other evidence of bad character or the undesirability of the applicant

as a permanent resident.” Id. (citing In re Gamboa, 14 I. & N. Dec. 244 (BIA 1972).)

This discretion may be favorably exercised even in the face of adverse equities if “there

are compensating elements such as long residence here, close family ties in the United

States, or humanitarian needs.” Id. (citing Gamboa, 14 I. & N. Dec. at 248).

       According to Meza, he would have been “a strong candidate” for voluntary

departure. (Appellant’s Brief at 28.) We cannot agree. Considering the serious negative

equities together with the relatively weak positive ones, Meza was an exceedingly poor

candidate for this form of discretionary relief.

       The government and the District Court have appropriately highlighted the various

negative factors weighing against Meza. The District Court noted “first that at the time

of his deportation, [Meza] had just been convicted of and been imprisoned for burglary.”

(A37.) Shortly before this conviction, he had entered a guilty plea to a charge of battery.

While his criminal history viewed in isolation may not have been prohibitively serious

alien are that it has no adverse impact upon future lawful attempts to enter the United
States (as contrasted with a formal deportation order), and it normally reduces the alien’s
time in detention.”).
                                              7
(e.g., he was apparently sentenced to 116 days’ incarceration and two years of probation

for burglary and received no sentence at all for battery), the District Court found that

Meza was a member of a known gang:

               Similarly, while [Meza] had not been convicted of any gang-related
       activities, he had been brought to the attention of Agent Varda’s gang task
       force at INS because of his alleged affiliation with a gang in Chicago.
       [(A109, A111.)] The “INS Record of Deportable/Inadmissible Alien” form
       filled out by Agent Varda on June 27, 2002 states that [Meza] is a “self-
       admitted member of the Bensenville, IL Sureno’s (13) street gang.”
       [(A209.)] This is corroborated by Agent Varda’s handwritten notes from
       his interview with [Meza], which also contain the notation “Sureno’s ‘13.’”
       [(A257.)] [Meza’s] gang membership counts as another significant
       negative equity arguing against the reasonable likelihood that he would
       have been granted voluntary departure.

(A38.) It is uncontested that Meza “had not attended any school in the U.S.” (Id.)

Meza’s father lived in Mexico.

       Weighed against these serious negative equities, the positive equities stand out as

relatively insignificant and as insufficient to establish a reasonable likelihood that Meza

would have been granted the privilege of voluntary departure. Meza was brought to this

country by his mother when he was only 14 years old “to live with his aunts and uncles in

Chicago” (Appellant’s Brief at 3-4 (citing A12, A15, A257; Presentence Investigation

Report at 9) and was only 17 year old at the time of the deportation proceeding. “Despite

the fact that Meza was in the United States for only three years and was just short of 18

years old, he had two criminal convictions, including the recent conviction for burglary

which resulted in the deportation proceeding.” (Appellee’s Brief at 39-40.) The District

Court rejected Meza’s testimony at the evidentiary hearing that he did not understand

English, and Agent Varda’s notes indicated that he worked as a laborer for six dollars an

                                              8
hour. Meza, however, thereby never attended school in the United States, even though he

purportedly “spent most of his adolescence in this country” (Appellant’s Reply Brief at

13 (citing A12)). We also cannot overlook the District Court’s undisputed factual finding

regarding Meza’s gang membership.

       In his reply brief, Meza contends that “[d]ecisions from the Board of Immigration

Appeals [(‘BIA’)] demonstrate that Mr. Meza’s youth and family ties made it reasonably

likely that he would have been granted voluntary departure, despite his prior

convictions.” (Id. at 13.) However, these distinguishable BIA decisions further confirm

that Meza was an unlikely candidate for voluntary departure. In the first case he cites, the

BIA sustained the alien’s appeal from the immigration judge’s denial of voluntary

departure, but it did so based on the existence of numerous positive factors weighed

against only one adverse equity. In re Ruiz Reyes, 2017 WL 4736611, at *1-*2 (BIA

Aug. 15, 2017) (unpublished decision). While Meza entered the country when he was 14,

lived here for only three years, “was not altogether incapable of communicating with

English speakers” (Appellant’s Reply Brief at 13 -14 (footnote omitted) (citing A23,

A257)), and never attended school in this country, Ruiz Reyes entered the United States

when he was only 4 years old, “has a long residence (14 years) in the United States,”

“speaks English fluently and is Americanized,” and “was attending high school and near

graduation when he was arrested and detained,” id. at *1. Ruiz Reyes also had (in

addition to family members in the country) “United States citizen siblings,” and he

planned to marry his longtime citizen girlfriend. Id. He was even granted DACA

(“Deferred Action for Childhood Arrivals”) status. Id. “The respondent’s sole adverse

                                             9
factor is his 2016 conviction for possession of less than 1 gram of cocaine. For this

offense, he was sentenced only to community supervision. He has no other arrests or

convictions. The respondent has filed a writ to vacate this conviction on constitutional

grounds.” Id. at *2. In contrast, Meza “was not married to anyone in the U.S.” (A38.)

Meza had two prior convictions, had been sentenced to serve some time in jail, and there

is no indication that his convictions were subject to challenge. Finally, Ruiz Reyes was

never identified as a gang member.4

                                            III.

       For the foregoing reasons, we will affirm the criminal judgment entered by the

District Court.




       4
         According to Meza, “the Board’s decision in [In re Maldonado-Hernandez, 2010
WL 4509754 (BIA Oct. 22, 2010) (unpublished decision)] reversed a denial of voluntary
departure where the petitioner’s lack of family ties in the United States, non-payment of
taxes, failure to maintain employment, and responsibility for causing a car accident by
running a stop sign were outweighed by his having entered the United States as a child,
grown up here, and his age of ‘19 years old at the time of the hearing.’” (Appellant’s
Reply Brief at 14 (quoting Maldonado-Herandez, 2010 WL 4509754, at *2).) However,
the BIA also observed that the alien “entered the United States when he was only 9 years
old and has lived in the United States for approximately 10 years.” Maldonado-
Hernandez, 2010 WL 4509754, at *2. The alien also did not have a criminal record in the
United States. Id. Likewise, the BIA briefly observed in In re Benitez Marban, 2015 WL
799767 (BIA Jan. 20, 2015) (unpublished decision), that, “[w]hile the pendency of
criminal charges is a serious adverse factor,” the alien had resided in this country “for
many years” and had family ties to the United States, id. at *1.
                                            10
