United States v. Ernesto Haro-Munoz , 552 F. App'x 689 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50461
Plaintiff - Appellee, D.C. No. 3:12-cr-02569-LAB-1
v.
MEMORANDUM*
ERNESTO ALONSO HARO-MUNOZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted August 27, 2013
Pasadena, California
Before: GOULD and RAWLINSON, Circuit Judges, and HUCK, District Judge.**
Appellant Ernesto Haro-Munoz (Haro-Munoz), who was convicted of
attempted entry after deportation, challenges the district court’s denial of his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Paul C. Huck, Senior U.S. District Court Judge for the
Southern District of Florida, sitting by designation.
motion to dismiss the indictment. He collaterally attacks the underlying removal
as fundamentally unfair. Haro-Munoz contends his due process rights were
violated because: (1) there was no evidence that he received actual notice of the
contents of his Form I-860, and (2) agents failed to obtain his signature on the
Form I-860. He also contends that he suffered prejudice because it was plausible
that an immigration officer would have granted discretionary relief allowing Haro-
Munoz to withdraw his application for admission.
To collaterally attack the underlying removal, Haro-Munoz must
demonstrate that: (1) he exhausted any available administrative remedies, (2) the
proceeding at which the removal order was issued improperly deprived him of the
opportunity for judicial review, and (3) “the entry of the order was fundamentally
unfair.” United States v. Rojas-Pedroza, 716 F.3d 1253, 1262 (9th Cir. 2013).1 A
defendant can meet these requirements by showing that the Immigration Judge
failed to inform the alien of his apparent eligibility for relief and that the alien had
plausible grounds for relief. See id.
We can resolve this case on the second prong of the analysis because it was
implausible that an immigration officer would have granted discretionary relief
1
The Government does not dispute that Haro-Munoz has satisfied the first
two prongs, and therefore the only element in dispute is whether the underlying
removal order was fundamentally unfair.
2
allowing Haro-Munoz to withdraw his application for admission. As discretionary
relief was implausible, any alleged due process violation did not result in prejudice
to Haro-Munoz. See id. at 1263.
Of the six factors listed in the Inspector’s Field Manual (Field Manual) for
an immigration officer to consider in evaluating an alien’s request for permission
to withdraw an application for admission, see United States v. Barajas-Alvarado,
655 F.3d 1077, 1090 (9th Cir. 2011), two weigh in favor of Haro-Munoz because
there were no prior findings of inadmissibility against him and there is a
compelling humanitarian interest in keeping families united. However, four factors
weigh against Haro-Munoz. First, Haro-Munoz was caught entering the United
States by stealth, not innocently through ignorance, misinformation, or bad advice.
Thus, his immigration violation was serious. Second, Haro-Munoz deliberately
tried to evade inspection by crossing the Rio Grande River, rather than a port of
entry, indicating an intent to violate the law. Third, he was neither a youth nor
elderly at age 36, and does not allege that he was in poor health. Last, Haro-
Munoz could not easily overcome the grounds of inadmissibility because his
common-law wife could not file a I-130 Petition for Alien Relative request until he
first obtained an expungement of his felony drug conviction. See Vasquez de
Alcantar v. Holder, 645 F.3d 1097, 1105 (9th Cir. 2011); see also 8 U.S.C. §
3
1182(a)(2)(A)(i)(II); Nunez-Reyes v. Holder, 646 F.3d 684, 688 (9th Cir. 2011)
(en banc) (discussing expungement of a conviction “for the purpose of a
disqualification”).
AFFIRMED.
4