F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v

.

H U M B E R

T O G O N Z A L E Z -F L O R

E S , D efendant-Appellant

. No. 14-50067

D.C. No. 3 :13-cr-01809-B EN-1

OPI NI ON

A ppeal from the United States District Court for the Southern District of California Rog er T. B enitez , District J u dg e, Presiding

Arg ued and Submitted F ebruary 6, 2015—Pasadena, California

F iled J une 8, 2015

B efore: Michael J . Melloy

, * J ay S. B y bee, and Sandra S. I kuta, Circuit J udg es.

Opinion by J udg e I k

uta

* T h e Ho n o rab l e M i c h a e l J

. Mello y , Sen io r Circu it J u dg e f o r t h e U .S. Co u rt o f A p peals f o r th e Eig h th

Circu it, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

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SUMMARY * *

Crim inal Law

The panel affirmed the district court’s denial of a motion
to dismiss a n information charg ing the defendant under 8 U.S.C. § 1 326 with b e ing an alien f ound in the United States after removal, in a case in which the defendant claimed that his 2004 removal order was invalid because the immig r ation judg e violated his due process rig hts by f ailing to inform him that he mig ht be elig ible for voluntary departure.

The panel held that the d e fe ndant may not b ring a collateral attack ag a inst the removal order because any error at the 2004 removal proceeding s was not pr e judicial. The panel ex plained that even if the I J ’s d e t a iled colloquy
reg arding the issue o f the defendant’s e lig ibility for voluntary departure f

ell short of the r equirements of 8 C.F .R. § 1240.11(a)(2), the defendant failed to carry hi s b u r d en o f showing a g rant of relief was plausible, where the defendant’s positive equities were minimal, his n eg ativ e equities were sig nificant, and he failed to carry his burden of showing that aliens with his scant positive equities have received relief.

COUNSEL

Michael A. Marks (arg

ued), F ederal D efenders of San Dieg o, I nc., San Dieg o, California, for Defendant-Appellant.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

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Scott T. J ones (arg

ued), Assistant U nited States Attorney ; L aura E. D uffy
, United States Attorney ; B ruce R. Castetter, Assistant United States Attorne y , C hief, Appellate Section, Criminal D ivision, San Dieg o, California, for Plai ntiffAppellee.

OP INION

I KUTA, Circuit J udg e:

Humberto Gonz alez -F lores appeals from t h e district court’s deni a l of his motion to d ismiss an information charg ing him under 8 U.S.C. § 1326 w ith being an alien found in the United States after he was removed in 2004. W e affirm. Gonz alez

- F lores may not b ring a collater a l attack
ag ainst the removal order underly ing h is conviction because
any error at the 2004 removal proceeding s w a s n ot prejudicial. See 8 U.S.C. § 1326(d)(3); Unit e d States v

. Vidal-Mendoza , 705 F

. 3d 1012, 1015–16 (9th Cir. 2013).

I

Gonz a lez -F lores, a citiz en of Mex ico, entered the United States illeg ally in 1 9 9 9

. H e was 15 y ears old at the time o f entry

. He beg an attending hig h school, but dropped o ut a fter the eleventh g rade to start working

. He worked for several
y ears at L os Ang eles I nternational Airport loading food onto passeng er planes. On N o vember 4, 2004, he was convicted of robbery in violation of California Penal C ode § 211 1 a nd

1 Sectio n 2 1 1 d ef

in es ro bb ery as “ th e f

elo n io u s tak in g o f p e rso n al
p ro p erty in th e p o ssessio n o f a n o th er, f ro m h is p erso n o r im

m ed i ate p resen ce, an d ag ain s t h is w ill, acco m p lish ed b y

m ean s o f f orce o r f ear.”U N I T E D S T A T E S V

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was sentenced to 210 day s in county jail. 2 H e had two prior misdemeanor convictions: in 2004, he was convicted o f driving without a license, and i n 2 001, he was convicted o f loitering in a public park after hours. 3

I n Nov ember 2004, after his robbery conviction, Gonz a lez -F lores w a s p laced in removal proceeding s. He appeared pro se at a hearing before an immig ration judg e (I J )

on D ecember 29, 2 004. During the hearing

, the I J asked Gonz a lez -F lores a series of questions to d raw out information relating to his elig ibility f or immig ration relief. The I J first asked whether Gonz a lez -F lores was married or had children, and whether his parents w ere U nited States citiz ens or lawful permanent re s i d e n t s

. G o n zalez -F lores a n swered “no” to these questions. The I J the n a sked whether Gonz alez -F lores’s parents were born, lived in, and were citiz ens of Mex ico. Gonz a lez -F lores answered “y es.” I n r esponse to f urther questions, Gonz a lez

- F lores stated that no one had ev e r filed

a petition on his behalf so he could immig rate to the United States, and that he was not a permanent resident of the United States. G onz alez -F lores also ag r eed with the I J ’s statement that Gonz alez -F lores came into the United States for the first time in 1999. The I J then confirmed that G o n z alez -F lores had b een convicted of robbery a nd s e n t en ced to 210 d ay s in jail.

2 T h e g o v ern m en t asserts t h at th e sen ten ce w as 2 4 0 day s, bu t th is f actu al d isp u te d o es n ot af

f ect o u r an aly sis.

3 Go n zalez- Flo res d isp u tes th at h e w as co n v icted o f lo iterin g in th e p ark

. B ecau se th e d istrict co u rt d i d n o t reso l v e th is d isp u te, w e d o n o t rely on th is m isd em ean o r co n v ictio n f o r o u r an aly sis.U N I T E D S T A T E S V

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After the I J asked Gonz alez -F lores if there was any other i nformation he wanted to tell the court and Goz a lez

- F lor e s said “no,” the I J ex plained his conclusion:

Then, sir, then the court does find that y ou’ll be removed from the United States to Mex ico based on the charg es contained in the notice to appear. H e’s not elig ible for any relief or any other benefits under the immig ration laws.

Specifically

, h e’s not elig ible for cancellation of removal be c ause he does not have the requisite ten y ears residence or the family ties to be elig ible for that form of relief.

He ’s not elig ible for adjustment of status because no petition has b een filed o n his behalf to allow him to adjust status.

And a s for voluntary d eparture, I ’m not [ g oing to] g rant that form of r elief. The r espondent’s been convicted of a crime of violence as well

as a c rime of theft: robbery

. I ’m [ g oing to] find that neg a tive

. . . that neg a t i v e a spect is
enoug h to o v ercome the, um, positive aspects that the respondent has in this c a se, which a re very few ex c e pt for those normally associated with any residence of a ny duration. So I ’ m not [ g oing t o ] g rant voluntary departure a s a matter of discretion.

As f or any cl a im to c itiz enship, he indicated h is parents w ere born in Mex ico, live i n Mex ico, and a

r e c itiz en s o f Mex ico, as wereU N I T E D S T A T E S V

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his g randparents. So h e does not derive any benefits throug h his family

, and he has no fear of persecution or torture if he g oes back to Mex ico.

So there being n o other relief available to him, it is the order of the court that he be removed from the United States to Mex ico based on the charg es contained in the notice to appear.

I n response to further questions, Gonz a lez -F lores stated he understood and accepted the I J ’s decision, and did n o t wish to appeal it. According ly , the I J ordered him removed.

F ollowing his removal in 2004, Gonz alez -F lores illeg ally reentered the United States in 2 0 0 8

. The g overnment reinstated his removal order, and removed him ag ain on F ebruary 29, 2 008. I n April 2 013, he made a third illeg al entry a nd was arrested near the b order b e t w een Mex ico a nd the United States. The g overnment char ge d h i m with being

an alien found in the U nited States after removal, in violation

o f 8 U.S.C. § 1326. He moved to d ismiss the inf o r m a t i o n under § 1326(d), claiming his 2004 removal order was invalid because the I J had v iolated his due p rocess rig hts by failing
to i n f o rm him that h e mig h t be e lig ible for voluntary departure. The district court denied the motion on the g r ound that no d ue process violation occurred, and even if there h ad been such a violation, Gonz alez -F lores suffered no prejudice. Gonz a lez -F lores later pleaded g uilty to the § 1326 violat ion in a p lea ag reement. The plea ag reement included an appeal waiver, but Gonz alez -F lores r etained the rig ht t o bring this appeal o f the district court’s denial of his motion to dismiss the information. W e have jurisdiction over his appeal under 28 U.S.C. § 1291.U N I T E D S T A T E S V

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I I

W e review de novo a district c ourt’s denial of an alien’s collateral challeng e t o a p rior deportation order under 8 U.S.C. § 1326(d). United S tates v. Gonzalez-Valerio

, 342 F .3d 1051, 1053 (9th Cir. 2003).

As orig inally enacted, § 1 3 26 did not perm i t c o l lateral attacks o n a prior order of deportation. United S tates v

. Mendoza-Lopez

, 481 U.S. 828, 837 (1987). I n r esponse to the Supreme Court’s determination t h at imposition o f criminal penalties based on a p rior administrative proceeding v iolated due process u nless there w as “ some meaning f ul review of the administrative proceeding ,” id. a t 8 37–38, Cong ress added § 1326(d), see United States v. Arias-Ordonez

, 597 F .3d 972, 976 (9th Cir. 2010). As requi r e d b y Mendoza-Lopez

, this section g ives a defendant the opportunity t o c h alleng e the validity of a prior deportation order in a criminal proceeding arising under § 1 3 26. An alien bring in g s u c h a collateral attack is required to p rove that: “ (1) the alien ex hau s t e d any administrative remedies that may have been available to seek relief ag ainst the order; (2) th e d e p ortation proceeding s at which the order w as issued improperly d eprived the alien of the opportunity for judicial r eview; and (3) the entry of the order was fundamentally

unfair.” 8 U.S.C. § 1326(d).

I n apply ing § 1326(d )

, our cases g enerally focus on a sing le ty pe o f defect in a deportation h earing : the I J ’s failure
to comply wi t h 8 C.F .R. § 1 240.11(a)(2). S ee, e.g. , VidalMendoza

, 705 F .3 d a t 1015. Under § 1240.11(a)(2), if an alien seeking lawful permanent resident status applies to the I J for a waiver of a g ro u n d o f i n admissibility

, the I J “ shall inform the a lien of his or her apparent elig ibility to a pply for
any of the b enefits enumerated in this c hapter and shall affordU N I T E D S T A T E S V

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the ali e n an opportunity to make application during the hearing

. ” 8 C.F .R. § 1240.11(a)(2). 4 We deem the I J to have breached its obli g ation to inform an alien of “ apparent elig ibility ” when the I J eit h e r f ails to g ive the alien any information about the ex istence of relief for which the alien is “apparently elig ible,” se e U n i t e d S t a tes v. Lopez-Velasquez

, 629 F .3d 894, 901 (9th Cir. 2010) (en banc); United States v

. Ortiz- L o p e z , 385 F .3d 1202, 1204 (9th Cir. 2 004); United States v. Arrieta
, 224 F

. 3d 1076, 1079 (9th Cir. 2 0 0 0 )

, o r when the I J erroneously tells t he alien that no relief is possible, see Arias-Ordonez

, 597 F .3d at 977; see also United States v. Camacho-Lopez

, 450 F .3d 9 28, 930 (9th Cir. 2 006); United S tates v. Pallares-Galan

, 359 F .3d 1088, 1096 (9th Cir. 2004); United States v. Leon-Paz
, 3 40 F .3d 1003, 1005 (9th Cir. 2003). An I J m a y a l so breach this reg ulatory oblig ation by stating that the alien is elig ible for relief, b ut immediately neg ating that statement so that “it is as if he was t o l d that he did not qualify for this r e lief,” which puts the alien in the same position as one who i s n e v e r “made a ware that he has a rig ht to seek relief.” U nited States v. Melendez-

4 8 CFR § 1 24 0 .1 1 .(a)(2 ) p ro v id es:

2 ) In co n j u n ctio n w i th an y ap p licatio n f o r creati o n of
statu s o f an alien l aw f

u lly ad m i t ted f

o r p erm an en t resid en ce m ad e t o an im

m i g ratio n j u d g e, if th e alien is in ad m issib le u n d er an y p ro v isio n o f sectio n 2 1 2 (a) of th e A ct, an d b eliev es th at h e o r sh e m eets th e elig ib ility
req u i rem en t s f

o r a w aiv er o f th e g ro u n d of in ad m issib ility

, h e o r sh e m ay ap p ly to th e i m m ig ratio n j u d g e f o r s u ch w aiv er. T h e im m ig ratio n j u d g e sh all in f o rm t h e alien o f h is o r h er ap p a ren t elig i b ility to ap ply f or an y of th e b en ef

its en u m erated in t

h is ch ap ter

a nd s h all af

f ord th e alien an o p p ortu n ity to m a k e ap plicatio n d u

rin g th e h earin g , i n acco rd an ce w it h t h e p ro v isio n s o f

§ 1 2 4 0 .8 (d ).U N I T E D S T A T E S V

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Castro
, 6 7 1 F .3d 950, 954 (9t h C i r. 2012) (per curiam) (quoting Arrieta
, 224 F .3d at 1079). B ecause an alien is entitled to the procedure set forth in 8 C.F .R. § 1240.11(a)(2) (as we have construed i t )

, w e have concluded that an I J ’s failure to comply with this procedure violates the alien’s rig ht
to p rocedural due process. S ee United States v. Muro–Inclan

, 249 F .3d 1180, 1183–84 (9th Cir. 2001).

F or purposes of § 1326(d), the I J ’s non-compliance with § 1240.11( a )(2) relieves the alien of the burden of proving

ex h austion of a d ministrative remedies under § 1326(d)(1) b e c ause “ we deem the alien’s waiver of the rig ht to a n administrative appeal to have been insufficiently considered and intellig ent.” Vidal-Mendoza , 705 F .3d at 1015 (internal quotation marks omitted). The I J ’ s r eg ulatory error also
proves that the alien was impr o p e r l y d e prived of the opportunity for judicial r eview purs u a n t to § 1 3 26(d)(2), because “an alien w ho is not made a ware that he has a rig ht
to seek relief n ecessarily has n o meaning f u l opportunity to appeal the fact that he was not a dv ised of that rig ht.” Arrieta
, 224 F

. 3d at 1079. F inally

, if the I J ’s error was prejudicial to the alien, then the alien c an establ i s h that the removal order “was fundamentally unfai r ” for purposes of 8 U .S.C. § 1326(d)(3). Vidal-Mendoza

, 705 F .3d at 1 0 1 6

. To prove prejudice, a

n alien seeking a d iscretionary form of relief must make a “plausible sho w i n g” that an I J presented with all o f the facts w ould ex ercise discretion in the ali e n’s favor. United States v. Rojas-Pedroza

, 716 F .3d 1253, 1263–64 (9th Cir. 2 013). “[ T] he defendant bears the burden o f proving prejudice under § 1 3 2 6(d)(3).” United States v. ValdezNovoa , 780 F .3d 906, 916–17 (9th Cir. 2015).

W e employ a t wo-step process for determining whether

an alien claiming apparent elig ibility for voluntary departureU N I T E D S T A T E S V

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has made this showing

. Rojas-Pedroza

, 716 F .3d at 1263. Fi rst, we consider the positive and neg ative factors a n I J would consider relevant to an ex ercise of discretion. See id.
at 1 2 6 4 –65. Positive factors include “ long residence, close family ties to the United States, and humanitarian needs.” Id.
at 1265. Neg ative factors include “the nature a nd underly

ing circumstances of the deportation g round at issu e ; additional violat i o n s o f t

h e immig ration laws; the e x istence, seriousness, and recency of any c riminal record; and any other e v i d e nce of bad c haracter or the u ndesira b i l i t y o f the applicant a s a pe rm a nent resident.” Id. (quoting Matter of ArguellesCampos , 22 I . & N. Dec. 811, 817 (B I A 1999)).

Second, we determ i ne whether, in lig ht of these f actors and the c ircumstances of the alien’s case, the alien carried the burden o f proving “it was p lausible ( not merely conceivable) that the I J would h a v e ex ercised his discretion in the alien’s favor.” Id. at 1263 (internal quota tion marks omitted). “[ E] stablishing ‘plausibility ’ requires more than establishing

a mere ‘possibility .’” United States v. Barajas-Alvarado

, 655 F .3d 1077, 1089 (9th Cir. 2011). I n assessing whether the alien carried this burden, we “f o c u s o n whether a liens with similar circumstances received relief.” Rojas-Pedroza

, 716 F .3d at 1 2 63. “[ T ] h e e x i s tence of a sing le case that is

ar guably on point means only that it is ‘possible’ o r ‘conceivable’ that a similarly situated alien would be afforded voluntary departur e

. That is plainly insufficient

. . . . ” Valdez-Novoa , 780 F .3d at 920–21.

I I I

W e now turn to the facts of this case, a n d consider whether Gonz a lez -F lores can bring a collateral attack on his prior deportation order under § 1326(d). Gonz alez -F l o r e sU N I T E D S T A T E S V

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claims that he sa t i s f

i es the three r equirements for bring ing such a collateral attack because the I J f ailed to inform h im o f his “ap p ar e n t elig ibility to a pply for” voluntary departure. See 8 C.F .R. § 1240.11(a)(2).

As a threshold matter, the record makes cl e ar (and Gonz a lez -F lores does not dispute) that the I J in this case did raise the issue of Gonz alez -F lores’s e l i gibility for voluntary departure. According ly

, Gonz alez

- F lo r es relies on MelendezCastro , and arg ues that the I J told him about the availability of voluntary departure only to tell him he did n o t qualify “almost in the same breath.” S ee 671 F .3d at 954.

W e disag ree. I

n M elendez-Castro , the I J stated:

The o nly other a

ppl i c ation y ou may be

e lig ible for is something called volunt a r y departure. Voluntary departure is available to any o ne who has not been convicted of an ag g r avated f

e l o ny

. I can deny this in my d i s cretion and, and [sic ] even if you were t o apply for voluntary departure I wouldn’t grant it to y ou

. I don’t g r a n t v o luntary departure to any one convicted of a c r ime in the United States, s o I will be deny ing any other case of v oluntary departure that y ou may make, but I need to g o throug h that in the records, so that y

ou understand.

67 1 F.3d at 953 (emphasis added). Melendez-Castro

ex p lained that this statement failed to meet the requirements of 8 C.F .R. § 1240.11(a)(2) because the I J stated that the alien

was elig ible for relief, b ut “almost in the same breath” stated the alien would not g et the relief if he a p plied for it, and “[ a]U N I T E D S T A T E S V

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reasonable p erson in Melendez –Castro’s position would have been discourag ed from apply ing for voluntary departure to an extent that it is as if he was told that he did not qualify for this relief.” Id. at 954 (emphasis a dded). W e concluded that such

a complete a

nd immediate neg ation violated the alien’s
p rocedural rig h t to be informed o f his apparent e lig ibil i t y t o apply for relief under § 1240.11(a)(2). Id.

Unlike in M

elendez-Castro

, the I J here did not s tate an unqualified rule that an alien in Gonz alez -F lores’s situ ation

c o u l d not q

ualify for relief. See id

. Nor did the I J r aise a n d then im m e d i ately n eg a te “almost in the same b r eath” the possibility o f vo l u n t a r

y departure. See id

. Rather, the I J raised the availability of such relief and ex plored it. I n effect, the I J deemed Gonz alez -F lores to h ave a pplied for voluntary departure, weig hed Gonz alez -F lores’s equit ies, and reached a conclusion on his application. 5

Bu t even if the I J ’ s detailed colloquy with G onz alez

F lores fell short of the requirements o f § 1 2 40.11(a)(2), Gonz a lez -F lores suffered n o prejudice f r om any such error, and therefore cannot demonstrate that the entry of the removal order was “fundamentally unfair” for purpos e s o f § 1326(d)(3). See R o

jas-Ped r o z a , 716 F .3d at 1266–67. Apply ing our two-part test f or prejudice, we first consider the positive and neg ative factors that are relevant to the I J ’s

5 Go n zalez- Flo res also arg u es h e w as n o t g iv en an op p o rt u n i t y t o

“ dev elo p th e issu e” o r “ p resen t e v i d e n c e in su p p o rt o f t h e claim .” H e d o es n ot ex plain

, h o w ev er, h o w th e IJ ’ s f ailu re t o g i v e h i m su ch an

o p p o rtu n ity dem o n strates th at Go n zalez- Flo res h as m et th e req u i rem en ts

o f § 1 3 2 6(d ), an d can th eref o re ch allen g e th e v alid ity o f th e rem o v al o rd er. B ecau se Go n zalez- Flo res h as n o t “ sp ecif ically an d d istin ctly arg u ed ” th is

m atter in h i s ap p eal, w e d eclin e to reach t h is issu e. Miller v. Fa irch ild In d u s ., In c. , 7 9 7 F.2 d 7 2 7 , 7 3 8 (9 th Cir. 1 9 86 ).U N I T E D S T A T E S V

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ex e r cise of discreti o n

. Here, Gonz alez -F lores’s positive equities are minimal: he lived in the United States for five
y ears, he attended hig h school from ag e 15 t h roug h the eleventh g rade, a

nd he held a job f

or a few y ears from when he left hig h school until h e c ommitted a robbery

. Althoug h the I J was not informed o f Gonz alez -F lores’s hig h school attendance and w ork h istory

, these additional facts do not contradict the I J ’s conclusion that G onz alez -F lores’s equities

were “very few ex cept f

or those n ormally associated with any residence of any duration.” B ecause n o n e of G onz alez

F lores’s f

amily members were United States c i t i z e n s o r lawful p ermanent residents, and b e c a u se he resided in the United States for only

five y ears, he lacked close family ties
to the United States or a long residence here, the most ty pical favorable e quities deemed i m p o rt a nt in other cases. See Arguelles-Campos

, 2 2 I

. & N

. Dec. at 817. On the other hand, his neg ative equities are sig n ificant. He was convicted of robbery

, which the I J described as “a crime of v iolence a s well as a crime of theft,” for which he was sentenced to 210 day s in jail, plus probation. He was also convicted of a prior misdemeanor.

Second, w e consider whether Gonz alez -F lores has carried his burden of showing that “ aliens with similar circumstances received relief.” See Rojas-Pedroza , 716 F .3d at 1263. The Ninth Circuit cases identified b y Gonz alez -F l o r e s involve aliens who had far more sig nificant positive equities, even thoug h they also had more sig nificant neg ative e quities. Gonz a lez -F lores has pointed to no case in which an alien with

so few positive equities has been g r anted relief. I n U n i t ed States v. Alcazar-Bustos

, we held that it was plau s i b l e a defendant would be g ra n t ed v oluntary departure where the d e f endant had lived in the United States since he wa s t w o months old and had a U ni ted States citiz en wife and child,U N I T E D S T A T E S V

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even thoug h the defendant’s criminal history included fire a r m possession convictions, and showed associati on w ith g ang members and prior drug use. 382 F

. App’x 568, 5 69–71 (9th Ci r. 2010). L ikewise, in United States v. Vasallo-Martinez

, we held it was plausible a defenda n t would be g ranted voluntary d eparture where the d efendant resided in the United States for 21 y ears, had a United States citiz en wife a nd child, and owned a b usiness, because these positive equities outweig hed the defendant’s f our c onvictions for d r i ving under the influence and th r e e unrelated misdemeanors. 360 F . App’x 731, 732–33 (9th Cir. 2009).

Gonz a lez -F lores has a lso identified opinions in w hich the B I A held that an alien was entitled to voluntary departure, but each of those cases similarly involved aliens with sig nificant positive equities. I n Matter of Gonzales- Figeroa
, the B I A upheld a g rant of v oluntary departur e w h ere the alien h ad lived in the United States for fifteen y ears, had a pending visa petition filed b y his lawful permanent res i d e n t mother, a nd his sister and two nieces were United Stat e s citiz ens. 2006 W L 729784, at *1–2 (B I A F eb. 10, 2006). Althoug h the alien in that case had four assault convictions and a conviction for resisting arrest, the B I A credited the a lien’s testimony that the convictions were the result of a d r inking problem, and that he

no long er drank after successfully completing a rehabilitation
progr am

. I

d

. at *1. Similarly

, in Matter of HernandezGarcia
, the B I A reversed a denial o f voluntary departure where the alien h a d a United States citiz en wife and child,

even thou g h t h e a lien had impersonated a United States citiz en in order to p rocure a passport. 2012 W L 1705671, at *1 (B I A Apr. 11, 2 0 1 2 ); see also Matter o f PinedaCastellanos

, 2005 W L 3833024, at *1–2 (B I A Nov. 16, 2 005) ( a ffirming an I J ’ s g rant of voluntary departure to an a lien with a lawful permanent resident wife and three children, butU N I T E D S T A T E S V

. G O

N Z A L E Z -F L O R

E S 15

i n d icating that such relief was barely warranted g iven th e neg ative e quities of six c riminal c onvictions). B y c o n trast, t he B I A affirmed a denial of voluntary departure where t h e alien was arrested twice for driving on a suspended license and once for a D UI
, despite the alien’s family ties to the United States. Matter of Posadas-Posadas

, 2 0 12 W L 371659, at *1–2 (B I A J an. 18, 2012).

As these c a s e s illustrate, Gonz a lez -F lores h as failed to carry his burden of showing that aliens with his scant positive equities received relief. See R o j a s-Pedroza

, 716 F .3d at 1263. I n fact, Gonz a lez -F lores has failed to identify even a sing le case on p oint, which in any event would be insufficient on its own. See Valdez-Novoa , 780 F

. 3d at 920–21.

B e cause Gonz alez

- F lores h as failed to carry his burden o f showing a g rant of relief was “plaus i b l e , ” he has not demonstrated that a

ny error on the part of the I J in informing him of the availability o f voluntary departure prejudiced him. See id

. at 9 21. A removal o rder is “ fundamentally unfair” for
purposes of § 1 326(d)(3) only if the alien “suffered prejudice

as a result of the defects” in the d e portation proceeding

, United S tates v

. Ubaldo–Figueroa

, 364 F .3d 1042, 1048 (9th Cir. 2004) (internal q u o t a tion marks omitted), and therefore Gonz a lez -F lores has not d emonstrated that he satisfied this requirement. B ecause G onz alez -F lores has not met a ll of the requirements o f § 1326(d), h e may not collaterally attack his deportation order.

AF F IRMED

.