United States of America v. Juan Manuel Lachino-Estrada

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN MANUEL LACHINO-ESTRADA,
Defendant - Respondent.
No. 10-50506
D.C. No. 3:10-cr-02343-L-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Argued and Submitted August 29, 2011
Pasadena, California
Before: SCHROEDER and GOULD, Circuit Judges, and SEEBORG, District
Judge.**
During his prosecution for being a removed alien found within the United
States in violation of 8 U.S.C.§ 1326, appellant Juan Manuel Lachino-Estrada
FILED
SEP 19 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“Lachino”) moved to dismiss the indictment on grounds that the underlying
removal order was invalid. Following the denial of that motion, Lachino entered a
conditional guilty plea, reserving the right to appeal the denial of the motion to
dismiss. Lachino was thereafter sentenced to time served and a one-year period of
supervised release. Because we agree that the failure of the immigration judge
(“IJ”) to advise Lachino of his eligibility for voluntary departure and to give him
the opportunity to develop the issue constituted a violation of due process, we
vacate the sentence and remand to permit the district court to determine whether
this violation prejudiced Lachino.
We review de novo a claim that defects in the underlying deportation
procedure rendered it invalid for use in criminal proceedings. United States v.
Ortiz-Lopez, 385 F.3d 1202, 1203 (9th Cir. 2004). A defendant charged with
illegal reentry after removal under § 1326 may collaterally attack the removal
order. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S. Ct. 2148, 95
L. Ed. 2d 772 (1987). To sustain a collateral attack, a defendant must show: (1)
that he or she exhausted all available administrative remedies to appeal the removal
order; (2) that the underlying removal proceedings at which the order was issued
“improperly deprived [him or her] of the opportunity for judicial review,” and; (3)
that “the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d). “An

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underlying removal order is fundamentally unfair if: (1) [a defendant’s] due
process rights were violated by defects in the underlying deportation proceeding,
and (2) he suffered prejudice as a result of the defects.” United States v.
Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (internal quotation marks
omitted).
Here, Lachino initially contends that the IJ incorrectly believed him to be
ineligible for voluntary departure, and therefore denied him relief as the result of
legal error, rather than through a proper exercise of discretion. Lachino has not
met his burden to show the IJ misunderstood the facts or the law regarding his
eligibility. See Kohli v. Gonzales, 473 F.3d 1061, 1068 (9th Cir. 2007) (noting the
“well established principle of federal law that administrative agencies are entitled
to a presumption that they ‘act properly and according to law.’” (citations
omitted)). There is no dispute, however, that the IJ did not expressly advise
Lachino he was entitled to request voluntary departure and did not offer him the
opportunity to present argument or evidence in support of such relief.
The Government contends that as long as the IJ actually exercised discretion
in considering Lachino for voluntary departure (or, more precisely, if Lachino
cannot establish the contrary), then there are no grounds to vacate his conviction.
The precedents make clear, however, that “[t]he requirement that the IJ inform an

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alien of his or her ability to apply for relief from removal is mandatory, and failure
to so inform the alien of his or her eligibility for relief from removal is a denial of
due process that invalidates the underlying deportation proceeding.”
Ubaldo-Figueroa at 1050 (9th Cir. 2004) (internal citations and quotation marks
omitted); see also United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000)
(“[W]here the record contains an inference that the petitioner is eligible for relief
from deportation, the IJ must advise the alien of this possibility and give him the
opportunity to develop the issue.” (internal citations omitted).)
The Government argues that an alien need not be expressly advised of the
potential availability of voluntary departure, provided the IJ in fact considered it.
The Government insists there is no meaningful distinction between an IJ saying,
“I’ve considered a few factors and will deny voluntary departure” as opposed to,
“you’re eligible for voluntary departure; however, after considering a few factors, I
am denying voluntary departure.” Even assuming an IJ only used the latter
formulation, however, the alien would at least be aware that he had been denied a
form of relief for which he or she was eligible, which could impact his or her
decision regarding waiving the right to appeal. See Ubaldo-Figueroa, 364 F.3d at
1049 (“We do not consider an alien’s waiver of his right to appeal his deportation
order to be considered and intelligent when the record contains an inference that

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the petitioner is eligible for relief from deportation, but the Immigration Judge fails
to advise the alien of this possibility.” (internal citations and quotation marks
omitted)). Moreover, even in the latter example given by the Government, the IJ
would have failed to comply with the requirement to “give [the alien] the
opportunity to develop the issue.” Arrieta, 224 F.3d at 1079 (internal citations and
quotation marks omitted).
To support its contention that there is no such requirement notwithstanding
Ubaldo-Figueroa, Arrieta, and similar cases, the Government relies primarily on
the non-precedential decision in United States v. Quintana-Ramos, 375 Fed. Appx
703 (9th Cir. 2010) (unpublished). In that case, the court rejected an argument that
the IJ had improperly applied a “categorical policy” to deny voluntary departure,
and concluded instead that the judge had made the decision through an exercise of
discretion based on the particular facts before him. Id. at 705. The Quintana court
then held there had been no due process violation, without any discussion of
whether the defendant had been advised of his eligibility for voluntary departure
and given an opportunity to seek it. Id.
In tacit recognition that the memorandum disposition contains no discussion
of the issue relevant to this case, the Government cites to the briefing presented in
Quintana to show that the appellant presented due process arguments similar to

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those made here. Sub silentio rejection of such arguments in a non-precedential
disposition, however, is not a basis for disregarding the clear rule expressed in
Ubaldo-Figueroa, Arrieta, and the other authorities cited therein. Accordingly, by
both failing to advise Lachino that he was eligible for voluntary departure and then
not giving him at least some meaningful opportunity to request it and to present
reasons why it would be warranted, the IJ failed to provide Lachino with the
process which he was due.
To establish prejudice from the deprivation of his due process rights,
Lachino need show only that he “had a ‘plausible’ ground for relief from
deportation.” Ubaldo-Figueroa, 364 F.3d at 1050 (citation omitted). He “does not
have to show that he actually would have been granted relief.” Id. The
Government argues that this standard is not applicable to Lachino, because he is an
alien with what the Government asserts is a “serious criminal history.” As such, the
Government contends, Lachino must instead show “unusual or outstanding
equities” to be entitled to relief. See United States v. Gonzalez-Valerio, 342 F.3d
1051, 1056–57 (9th Cir. 2003) (noting that when seeking discretionary waiver
from deportation, an applicant “who has a serious criminal history must
demonstrate unusual or outstanding equities in order to receive relief.”). To the
extent the Government is suggesting this is an alternative standard, it

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misunderstands the relationship between the requirement for some aliens to
establish “unusual or outstanding equities” and the test applicable when a court
evaluates a collateral challenge to a prior removal order in cases like this one. The
standard is always whether the defendant has shown “plausible” grounds on which
he or she might have been granted relief by the IJ. When an alien’s criminal
history is such that he or she would have been required to demonstrate “unusual or
outstanding equities” to the IJ, that merely makes the proffered grounds for relief
less plausible. See Gonzalez-Valerio, 342 F.3d at 1057 (evaluating whether
defendant had shown plausible grounds for relief, given his serious criminal
history).
Here, the district court did not reach the question of whether Lachino had
shown “plausible” grounds for relief, including the extent to which he might or
might not have been required to show unusual equities. Accordingly, remand is
appropriate to permit the district court to decide the prejudice issue in the first
instance. See United States v. Leon-Paz, 340 F.3d 1003, 1007 (9th Cir. 2003) (“We
. . . remand the case to the district court so that it can consider whether [defendant]
was prejudiced by the deprivation of his due process rights in his 1997 removal
proceeding. If he was not prejudiced, the district court may reinstate the

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conviction and sentence. If he was prejudiced, the district court must dismiss the
indictment.”)
VACATED AND REMANDED.

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