                                                                             FILED
                           NOT FOR PUBLICATION                                JAN 03 2011

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 09-10491

              Plaintiff - Appellee,             D.C. No. 2:09-cr-00203-HDM-
                                                GWF-1
  v.

FERNANDO ROJAS-LAGUNEZ,                         MEMORANDUM*

              Defendant - Appellant.


                 Appeal from the United States District Court
                          for the District of Nevada
              Howard D. McKibben, Senior District Judge, Presiding

                     Argued and Submitted December 8, 2010
                            San Francisco, California


Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.


       Defendant-appellant Fernando Rojas-Lagunez (“Rojas”) appeals the district

court’s denial of his motion to dismiss his indictment under 8 U.S.C. § 1326 for

entering the country unlawfully after a prior deportation or removal, arguing that in



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the removal proceeding underlying the charged offense, the Immigration Judge (“IJ”)

failed to advise him of the right to apply for fast track voluntary departure in lieu of

formal removal proceedings, as well as his right to appeal his removal. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Rojas contends that he is able to establish the prejudice necessary to invalidate

the removal proceedings in this collateral attack because his prior aggravated felony

convictions, which the district court held barred relief, were not included in the Notice

to Appear proffered to the immigration court, and it was therefore “plausible” that the

IJ could have mistakenly granted him relief.

      In order to show prejudice invalidating the underlying removal proceeding,

Rojas was required to show that he had a “‘plausible’ ground for relief from

[removal].” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2003)

(quoting United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000)). However, the

convictions for aggravated felonies rendered Rojas categorically barred from receiving

discretionary relief in the form of voluntary departure. 8 U.S.C. § 1229c(a); United

States v. Ortiz-Lopez, 385 F.3d 1202, 1205 n. 3 (9th Cir. 2004) (per curiam). Where

an alien is “barred from receiving relief, his claim is not ‘plausible.’” United States

v. Gonzalez-Valerio, 342 F.3d 1051, 1056 (9th Cir. 2003).




                                           2
      That he is categorically barred from eligibility for voluntary departure under the

applicable statute thus means not only that Rojas was not prejudiced by the failure to

inform him of the availability of relief, but that he indeed could not be prejudiced by

any such failure. As such, Rojas cannot establish any plausible ground for relief, and

consequently cannot carry his burden of proving that any defects in his removal

proceeding prejudiced him, even if such defects resulted in due process violations.

See id. at 1054-56.

      AFFIRMED.




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