United States v. Juan Ramirez-Villalba

U.S. Court of Appeals for the Ninth Circuit
United States v. Juan Ramirez-Villalba, 490 F. App'x 912 (9th Cir. 2012)

United States v. Juan Ramirez-Villalba

Opinion

MEMORANDUM ***

Appellant Juan Manuel Ramirez-Villal-ba (“Ramirez”) appeals the district court’s denial of his motion to dismiss his indictment under 8 U.S.C. § 1326 for attempted reentry after deportation. The denial of such a motion is reviewed de novo where, as here, the motion was based on “due-process defects in [an] underlying deportation proceeding.” United States v. Moriel-Luna, 585 F.3d 1191, 1196 (9th Cir. 2009).

Ramirez claims that during the deportation proceedings at issue, the Immigration Judge (“IJ”) never advised him of a potential “extreme hardship” waiver of remova-bility or a humanitarian reinstatement of his immigrant visa petition. See 8 U.S.C. § 1182(h); 8 C.F.R. § 205.1(a)(3)®. According to Ramirez, these errors were prejudicial and violated due process.

To prove prejudice in violation of due process, a defendant must show that “upon a review of the record, it appears ... an IJ could have concluded ... his potential claim[s] for relief’ from removal “would be ‘plausible.’ ” United States v. Pallares-Galan, 359 F.3d 1088, 1103-04 (9th Cir. 2004). Here, neither of Ramirez’s claims would produce a plausible avenue for relief.

In certain circumstances, an alien otherwise removable may seek a waiver of removal if: (1) his parent is a legal permanent resident; (2) his removal “would result in extreme hardship to the ... lawfully resident ... parent” and (3) “the Attorney General, in his discretion” consents. 8 U.S.C. § 1182(h); see also Mendoza v. Holder, 623 F.3d 1299, 1301 n. 3 (9th Cir. 2010). In evaluating a claim of extreme hardship to Ramirez’s permanent-resident mother, we consider numerous unfavorable factors — including, among many others, Ramirez’s multiple pre-1995 felonies, his repeated illegal entries, and the length of time he had spent in Mexico or in American incarceration — and conclude he had no plausible claim to an ex *913 treme-hardship waiver. See Gutierrez-Centeno v. INS, 99 F.Sd 1529, 1533 n. 8 (9th Cir. 1996), superseded by statute on other grounds as stated in Falcon Car-riche v. Ashcroft, 350 F.3d 845, 854 n. 9 (9th Cir. 2003); United States v. Arrieta, 224 F.3d 1076, 1082 (9th Cir. 2000); Has-san v. INS, 927 F.2d 465, 467 (9th Cir. 1991).

Ramirez argues that he could have obtained a humanitarian reinstatement of his immigrant visa petition, but he concedes that even after such reinstatement, he would still need to obtain a waiver of his prior convictions under 8 U.S.C. § 1182(h) or 8 U.S.C. § 1182(c) (1994) in order to avoid deportation. As discussed above, a section 1182(h) claim is implausible. Similarly, there was no plausible basis for exercising section 1182(c) discretion. See Pablo v. INS, 72 F.3d 110, 113 (9th Cir. 1995).

AFFIRMED.

***

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuel RAMIREZ-VILLALBA, Defendant-Appellant
Status
Unpublished