Argued and Submitted February 6, 2015-Pasadena, California
Appeal from the United States District Court No. 3:13-cr-01809-BEN-1 for the Southern District of California Roger T. Benitez, District Judge, Presiding
Michael A. Marks (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Scott T. Jones (argued), Assistant United States Attorney; Laura E. Duffy, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, San Diego, California, for Plaintiff-Appellee.
Before: Michael J. Melloy, [*] Jay S. Bybee, and Sandra S. Ikuta, Circuit Judges.
The panel amended an opinion filed June 8, 2015, denied a petition for panel rehearing, and denied on behalf of the court a petition for rehearing en banc, in a case in which the panel affirmed the district court's denial of a motion to dismiss an information charging the defendant under 8 U.S.C. § 1326 with being an alien found in the United States after removal.
The defendant claimed that his 2004 removal order was invalid because the immigration judge violated his due process rights by failing to inform him that he might be eligible for voluntary departure.
The panel held that the defendant may not bring a collateral attack against the removal order because any error at the 2004 removal proceedings was not prejudicial. The panel explained that even if the IJ's detailed colloquy regarding the issue of the defendant's eligibility for voluntary departure fell short of the requirements of 8 C.F.R. § 1240.11(a)(2), the defendant failed to carry his burden of showing a grant of relief was plausible, where the defendant's positive equities were minimal, his negative equities were significant, and he failed to carry his burden of showing that aliens with his scant positive equities have received relief.
The opinion filed on June 8, 2015, and published at 788 F.3d 1094, is hereby amended as follows:
On page 1099, in the first full paragraph, <We deem the IJ to have breached its obligation> should be replaced with <We have applied this obligation outside of the context of an alien's application for lawful permanent resident status, see Vidal-Mendoza, 705 F.3d at 1015, and we deem the IJ to have breached its obligation>.
On pages 1100–1101, the three paragraphs beginning <As a threshold matter> and ending <and reached a conclusion on his application.> should be removed. In the following paragraph, <But even if the IJ's detailed colloquy> should be replaced with <We need not decide whether the IJ adequately informed Gonzalez-Flores of his eligibility for voluntary departure, because even if the IJ's detailed colloquy>. The paragraph break should be removed from before the sentence beginning <We need not decide whether>, and a paragraph break should be added before the sentence beginning <Applying our two-part test for prejudice>.
With these amendments, the petition for panel rehearing is DENIED. Judge Bybee and Judge Ikuta voted to deny the petition for rehearing en banc and Judge Melloy so recommended. The petition for rehearing en banc was circulated to the judges of ...