541 F.3d 881 (9th Cir. 2008), 05-50979, United States v. Becerril-Lopez

Docket Nº:05-50979.
Citation:541 F.3d 881
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Raul BECERRIL-LOPEZ, Defendant-Appellant.
Case Date:June 12, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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541 F.3d 881 (9th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Raul BECERRIL-LOPEZ, Defendant-Appellant.

No. 05-50979.

United States Court of Appeals, Ninth Circuit.

June 12, 2008

Argued Nov. 14, 2006.

Submitted June 5, 2008.

Amended Aug. 29, 2008.

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Stephanie J. Lacambra, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Matthew J. Gardner and Mark R. Rehe, Assistant United States Attorneys, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-05-01367-MLH.

Before: HARRY PREGERSON, CYNTHIA HOLCOMB HALL, and HAWKINS, Circuit Judges.

ORDER

The opinion filed on June 12, 2008, [ 528 F.3d 1133] is amended as follows. On slip opinion page 6718 [ 528 F.3d at 1138], footnote 2, the following language shall be added:

We express no opinion as to the result if Becerril's prior deportation were governed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1997, which provided in part that “[t]he Attorney General may permit an alien voluntarily to depart ... in lieu of being subject to proceedings under section 1229a of this title or prior to the completion of such proceedings, if the alien is not deportable under section 1227(a)(2)(A)(iii) or section 1227(a)(4)(B) of this title." 8 U.S.C. § 1229c(a)(1) (1997); see also United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir.2004).

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With this amendment, the panel has voted to deny appellant's petition for panel rehearing and has recommended denial of the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

No further petitions for rehearing will be entertained.

OPINION

HALL, Circuit Judge:

Raul Becerril-Lopez (“Becerril" ) appeals his jury conviction and sentence for being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Among other claims, he argues that his prior conviction under California Penal Code § 211 does not qualify as a “crime of violence" under the sentence enhancement provision for illegal re-entry crimes. We hold that it does, and we affirm.

I. Background

Becerril was apprehended just north of the border near San Ysidro on July 4, 2005. Because he had previously been deported in 1995, Becerril was subsequently indicted on charges of being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a). He was convicted on this sole count after a jury trial.

At the sentencing hearing on December 12, 2005, the district court found that Becerril had a base offense level of 8 and imposed a 16-level enhancement under Sentencing Guidelines § 2L1.2(b) on the basis of a 1986 conviction for robbery under California Penal Code § 211. See8 U.S.C. § 1326(b). He was sentenced to 100 months in prison (which was the low end of the applicable Guidelines range) and three years of supervised release. Becerril filed a timely notice of appeal.

II. The Conviction

A. The Motion to Dismiss the Indictment

Becerril first argues that the district court should have dismissed the indictment because he was denied due process at the master calendar hearing preceding his 1995 deportation. We review de novo the district court's denial of Becerril's motion to dismiss on these grounds. United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001).

The Due Process Clause requires a meaningful opportunity for judicial review of the underlying deportation in a § 1326 prosecution. United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir.1998). To succeed in a collateral attack on an earlier deportation, a defendant must show (1) that he exhausted his administrative remedies to appeal his removal order; (2) that the underlying removal proceedings deprived him of the opportunity for judicial review; and (3) that the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004). A deportation order is fundamentally unfair if the defendant's due process rights were violated by defects in the underlying deportation proceeding, and the defendant suffered prejudice as a result of the defects. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000).

At the master calendar hearing, the Immigration Judge asked whether anyone had family members who were permanent residents or citizens of the United States, for the purposes of granting relief under § 212(h) of the Immigration and Nationality Act. The IJ also asked each person

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individually whether he wanted to seek an appeal. The judge did not advise the group of the possibility of voluntary departure because he had found that each person had a prior criminal conviction. Becerril did not mention his family members in the United States and did not indicate any intent to appeal his case. Now, he argues that he was entitled to relief under § 212(h), as well as voluntary departure, withdrawal of his application, and an appeal. Therefore, he argues that he suffered prejudice due to alleged defects in the way the hearing was conducted.

1. 212(h) Relief

Becerril argues that he would have been eligible for relief under § 212(h), and that the judge did not advise him of this option. Under § 212(h), the Attorney General may waive removal if deportation would cause “extreme hardship" to relatives of the alien who are U.S. citizens or permanent legal residents. 8 U.S.C. § 1182(h)(1)(B) (1995). At Becerril's hearing, conducted in group format, the IJ asked whether anyone had close relatives who were permanent residents or citizens. After engaging in a colloquy with one person, the IJ asked in Spanish whether anyone else (“Alguien más?" ) qualified. Becerril claims that the IJ “sped through his general advisal," and moved on from question to question without waiting for the translator. The record does not support this assertion. While the IJ did not wait for the translator at certain moments, these instances occurred only when the IJ had made a statement, not asked a question.

Even if the colloquy here was procedurally deficient in some way, Becerril must still show that he had “plausible grounds" for relief under this provision. United States v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir.1998). To demonstrate the “extreme hardship" required by the statute, the defendant must show that the consequences of his being removed would go beyond “the common results of deportation," such as a loss of financial support for relatives in the United States. Id. at 564 (citing Shooshtary v. INS, 39 F.3d 1049 (9th Cir.1994)). We will find prejudice only after a clear, detailed demonstration that the defendant provided “non-economic familial support" or “something more" than financial support. Arrieta, 224 F.3d at 1082. Becerril's brief presents only a few abstract claims about financial support for his son, a U.S. citizen, and his father, a legal resident of the United States. We hold that he has failed to demonstrate any prejudice here.

2. Voluntary Departure

Becerril claims that he was entitled to be advised of what he calls “pre-conclusion" voluntary departure under § 242 of the INA, codified at 8 U.S.C. § 1252(b) (1995).1 As it existed in 1995, this provision gave the Attorney General discretion to waive deportation hearings for aliens who depart voluntarily “in lieu of initiating deportation proceedings." Contreras-Aragon v. INS, 852 F.2d 1088, 1094 (9th Cir.1988) (emphasis in original). The Supreme Court has noted that, under the statute at the time, “[a]rrested aliens [were] almost always offered the choice of

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departing the country voluntarily, ... and as many as 98% of them [took] that course." Reno v. Flores, 507 U.S. 292, 307, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993).2

The Attorney General was not required, however, to grant this form of relief automatically to aliens who were eligible. See Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir.1990) (holding that the “permissive" language of the statute and implementing regulations gave the Attorney General “unfettered" discretion to grant or deny pre-hearing voluntary departure). Because pre-hearing voluntary departure would have been granted, if at all, before the hearing, we cannot hold that the IJ violated Becerril's rights by failing to mention it at the hearing itself.3

3. Withdrawal of Application for Admission

Becerril argues that he was an “applicant for admission" to the United States and should have been informed of his right to withdraw his application and leave the country under 8 U.S.C. § 1101(a)(4). Becerril offers no cases, statutes or regulations to support the claim that he was an “applicant for admission," and we decline to endorse it.

4. Right to Appeal

Finally, Becerril argues that his deportation was invalid because he did not properly waive his right to appeal. He analogizes his case to United States v. Zarate-Martinez, 133 F.3d 1194 (9th Cir.1998), where we found that waiver was invalid because of the way the IJ conducted the group hearing. In Zarate-Martinez, the IJ stated, in the future tense, that every person “will have the right to appeal," without stating when or how. Id. at 1197. The IJ also told the group that anyone who wanted to appeal should raise his hand, without asking...

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