NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 23 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-30207 Plaintiff-Appellee, D.C. No. 1:18-cr-02011-LRS-1 v. JESUS LANDEROS-MORALES, AKA MEMORANDUM* David Walle-Lopez, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, District Judge, Presiding Argued and Submitted December 10, 2020 Seattle, Washington Before: BERZON, MILLER, and BRESS, Circuit Judges. Jesus Landeros-Morales appeals from his conviction for illegal reentry, in violation of 8 U.S.C. § 1326. He argues that the district court should have dismissed the indictment because his underlying deportation order was invalid. We have jurisdiction under 28 U.S.C. § 1291. We review this issue de novo, United States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir. 2012), and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. A defendant charged with illegal reentry may bring a collateral challenge to his underlying deportation order if he shows that (1) his “due process rights were violated by defects in his underlying deportation proceeding,” and (2) “he suffered prejudice as a result of the defects.” United States v. Vidal-Mendoza, 705 F.3d 1012, 1015–16 (9th Cir. 2013). Landeros-Morales argues that the immigration judge (IJ) in his 1993 deportation proceeding violated due process by failing to inform him that he was eligible for a discretionary waiver of relief from deportation under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c) (Supp. III 1992) (repealed 1996). See Vidal-Mendoza, 705 F.3d at 1016. Assuming without deciding that the IJ violated due process, Landeros- Morales is not entitled to relief because he cannot demonstrate prejudice. To show prejudice, Landeros-Morales bears the burden of showing that it is “plausible,” and not “merely conceivable or possible,” that the IJ would have granted him § 212(c) relief. United States v. Valdez-Novoa, 780 F.3d 906, 914 (9th Cir. 2015). In conducting the prejudice inquiry in the section 212(c) context, we weigh the defendant’s positive factors, such as “family ties within the United States” and “a history of employment,” against factors unfavorable to the defendant, such as “the nature and underlying circumstances of the exclusion or deportation ground at issue” and “the existence, seriousness, and recency of any criminal record.” Yepes-Prado v. INS, 10 F.3d 1363, 1366 (9th Cir. 1993) (citing Matter of Edwards, 20 I. & N. 2 Dec. 191, 195 (B.I.A. 1990)). In addition, a defendant “who [has] been convicted of serious drug offenses, particularly trafficking,” or whose “record reflects a pattern of serious criminal activity,” must show “outstanding equities.” Ayala-Chavez v. INS, 944 F.2d 638, 641 (9th Cir. 1991). Because of his 1988 drug convictions, Landeros-Morales is subject to this “higher standard.” See id. While we acknowledge Landeros-Morales’s family ties, employment history, and other positive factors in the record, in light of his extensive and serious criminal history, Landeros-Morales has not shown it is plausible that ...
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