United States v. Guillermo Ortega


NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 26 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-10295 Plaintiff-Appellee, D.C. No. 4:14-cr-01883-RCC-BGM-1 v. GUILLERMO ORTEGA, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Raner C. Collins, Chief Judge, Presiding Argued and Submitted September 6, 2018 San Francisco, California Before: BERZON and FRIEDLAND, Circuit Judges, and CARDONE,** District Judge. Appellant Guillermo Ortega appeals from the denial of his motion to dismiss his indictment pursuant to 8 U.S.C. § 1326(d). He argues that his April 23, 2001 removal order cannot support his conviction for illegal reentry in violation of 8 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. U.S.C. § 1326(a), because he was prejudiced by the immigration judge’s (“IJ”) failure to inform him of his eligibility for pre-conclusion voluntary departure, a form of immigration relief. We conclude that it is plausible Ortega would have been granted pre-conclusion voluntary departure, and we therefore reverse his conviction. On May 28, 2015, Ortega was convicted of illegal reentry in violation of 8 U.S.C. § 1326(a). In a previous decision, we held that defects in Ortega’s 2001 removal proceedings and removal order, which serve as the predicate to his conviction, violated his due process rights because the IJ failed to inform Ortega of his possible eligibility for certain forms of immigration relief. United States v. Ortega, 675 F. App’x 687, 688 (9th Cir. 2017). As a result, we held, Ortega satisfied each prong necessary to challenge the removal order underlying his illegal reentry conviction except the prejudice prong. Id. We remanded to the district court to determine whether Ortega suffered prejudice as a result of the defects in his removal proceedings. On remand, the district court held that Ortega was not prejudiced by the IJ’s failure to inform him of pre-conclusion voluntary departure, because it was not plausible that he would have been granted such relief. To demonstrate that Ortega was prejudiced by the IJ’s failure to inform him of pre-conclusion voluntary departure, he must show that it is “plausible” an IJ would have granted him such relief at the time of his removal hearing in 2001. See 2 United States v. Raya-Vaca, 771 F.3d 1195, 1207 (9th Cir. 2014). “Plausible” connotes a degree of probability between “possible” and “probable.” See id; United States v. Cisneros-Rodriguez, 813 F.3d 748, 761 (9th Cir. 2015). The burden is not a heavy one—a defendant “need only establish ‘some evidentiary basis on which relief could have been granted.’” Raya-Vaca, 771 F.3d at 1207 (quoting United States v. Reyes–Bonilla, 671 F.3d 1036, 1049-50 (9th Cir. 2012)). We engage in an objective, fact-specific inquiry and may conclude that relief is plausible if “[individuals] with similar circumstances received relief.” United States v. Rojas- Pedroza, ...

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