United States of America v. Jose Ramos Martinez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE RAMOS MARTINEZ,
Defendant-Appellant.
No. 14-50334
3:13-cr-04277-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted November 4, 2015
Pasadena, California
Before: W. FLETCHER and GOULD, Circuit Judges, and CHRISTENSEN,**
Chief District Judge.
Defendant-Appellant Jose Ramos Martinez appeals pursuant to 8 U.S.C.
§ 1326(d) the district court’s March 3, 2014 denial of his motion to dismiss the
FILED
DEC 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
** The Honorable Dana L. Christensen, Chief District Judge for the U.S. District
Court for the District of Montana, sitting by designation.
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indictment. We reverse and remand so the district court may properly assess the
plausibility that Ramos would have been granted voluntary departure in his
underlying 2009 deportation proceeding.
The district court erred by applying the wrong standard to determine if
Ramos was prejudiced by a due process violation. Under § 1326(d)(3), a
defendant must demonstrate prejudice resulting from a due process violation in
order to show that the underlying immigration hearing was fundamentally unfair.
United States v. Valdez-Novoa, 780 F.3d 906, 913 (9th Cir. 2014) (citing United
States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004)). Prejudice is
determined by asking if it is plausible that the immigration judge (“IJ”), had he
properly considered the defendant’s negative and positive equities, would have
granted voluntary departure. Valdez-Novoa, 780 F.3d at 914, 917 (citations
omitted).
This plausibility standard is distinct from the “extreme hardship” standard
applied when aliens attempt to obtain waivers of inadmissibility to avoid
deportation pursuant to the Immigration and Nationality Act § 212(h)(1)(B),
codified at 8 U.S.C. § 1182(h)(1)(B). See Shooshtary v. INS, 39 F.3d 1049, 1050
(9th Cir. 1994); United States v. Contreras, 406 Fed. App’x 160 (9th Cir. 2010)
(unpublished). In this case, the district court correctly identified the plausibility
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standard. However, it erred when it assessed plausibility against the “extreme
hardship” standard under INA § 212(h)(1)(B). On remand, the district court
should apply Valdez-Novoa to determine whether it is plausible that the IJ would
have granted voluntary departure on the basis of Ramos’s positive and negative
equities and that as a result Ramos suffered prejudice. 780 F.3d at 916-17.
REVERSED AND REMANDED.
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