United States v. Robert Skeffery , 500 F. App'x 694 ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 14 2012
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 11-50553
Plaintiff - Appellant, D.C. No. 3:10-cr-00310-JAH-1
v.
MEMORANDUM *
ROBERT SKEFFERY,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted December 3, 2012
Pasadena, California
Before: BERZON, CLIFTON, and IKUTA, Circuit Judges.
The government appeals the district court’s order granting in part Robert
Skeffery’s motion to dismiss an indictment for attempted re-entry after deportation
in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 18 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 3731. See United States v. Gonzalez-Valerio, 342 F.3d 1051, 1052 (9th Cir.
2003). Reviewing de novo, see id. at 1053, we reverse and remand.
Skeffery’s collateral attack on his deportation order fails because he has not
demonstrated that he was prejudiced by the Immigration Judge’s failure to inform
him of potential relief from deportation under former § 212(c) of the Immigration
and Nationality Act.1 See id. at 1054. Because of his serious criminal history,
Skeffery would have had to demonstrate outstanding or unusual equities to receive
§ 212(c) relief. See id. at 1056–57. Skeffery’s equities, which consist of long-term
residence in and family ties to the United States, are not outstanding or unusual, so
he lacks a plausible ground for relief. See id. at 1057; see also Ayala-Chavez v.
INS, 944 F.2d 638, 641–42 (9th Cir. 1991).
Skeffery’s alternate argument, that he was not advised of the possibility of
voluntary departure, lacks merit. To qualify for voluntary departure, Skeffery
would have had to establish “good moral character.” 8 U.S.C. § 1254(e)(1) (1994)
(repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA)). But his 2003 drug-related conviction, which was sustained within
the five years preceding his May 2007 deportation hearing, precluded him from
1
Because Skeffery’s deportation proceedings began prior to the effective
date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), the proceedings were governed by pre-IIRIRA law.
2
meeting this requirement. See 8 U.S.C. §§ 1101(f)(3), 1182(a)(2)(A)(i)(II),
1254(e)(1) (1994). Although IIRIRA added a second form of voluntary departure
that does not require a showing of good moral character, see 8 U.S.C.
§ 1229c(a)(1), Skeffery was not eligible for this form of voluntary departure
because his deportation proceedings commenced before the effective date of
IIRIRA. See Pascua v. Holder, 641 F.3d 316, 319 (9th Cir. 2011) (holding that
IIRIRA’s transitional rules “instruct courts not to apply IIRIRA in proceedings that
began before the statute’s effective date”).
REVERSED AND REMANDED.
3