FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HUMBERTO GONZALEZ-FLORES,

Defendant-Appellant.

No. 14-50067

D.C. No.

3:13-cr-01809-BEN-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted

February 6, 2015—Pasadena, California

Filed June 8, 2015

Before: Michael J. Melloy,

*

 Jay S. Bybee,

and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

* The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S.

Court of Appeals for the Eighth Circuit, sitting by designation.
2 UNITED STATES V. GONZALEZ-FLORES

SUMMARY**

Criminal Law

The panel affirmed the district court’s denial of a motion

to dismiss an information charging the defendant under 8

U.S.C. § 1326 with being an alien found in the United States

after removal, in a case in which the defendant claimed that

his 2004 removal order was invalid because the immigration

judge violated his due process rights by failing to inform him

that he might be eligible for voluntary departure.

The panel held that the defendant may not bring a

collateral attack against the removal order because any error

at the 2004 removal proceedings was not prejudicial. The

panel explained that even if the IJ’s detailed colloquy

regarding the issue of the defendant’s eligibility for voluntary

departure fell short of the requirements of 8 C.F.R.

§ 1240.11(a)(2), the defendant failed to carry his burden of

showing a grant of relief was plausible, where the defendant’s

positive equities were minimal, his negative equities were

significant, and he failed to carry his burden of showing that

aliens with his scant positive equities have received relief.

COUNSEL

Michael A. Marks (argued), Federal Defenders of San Diego,

Inc., San Diego, California, for Defendant-Appellant.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. GONZALEZ-FLORES 3

Scott T. Jones (argued), Assistant United States Attorney;

Laura E. Duffy, United States Attorney; Bruce R. Castetter,

Assistant United States Attorney, Chief, Appellate Section,

Criminal Division, San Diego, California, for PlaintiffAppellee.

OPINION

IKUTA, Circuit Judge:

Humberto Gonzalez-Flores appeals from the district

court’s denial of his motion to dismiss an information

charging him under 8 U.S.C. § 1326 with being an alien

found in the United States after he was removed in 2004. We

affirm. Gonzalez-Flores may not bring a collateral attack

against the removal order underlying his conviction because

any error at the 2004 removal proceedings was not

prejudicial. See 8 U.S.C. § 1326(d)(3); United States v.

Vidal-Mendoza, 705 F.3d 1012, 1015–16 (9th Cir. 2013).

I

Gonzalez-Flores, a citizen of Mexico, entered the United

States illegally in 1999. He was 15 years old at the time of

entry. He began attending high school, but dropped out after

the eleventh grade to start working. He worked for several

years at Los Angeles International Airport loading food onto

passenger planes. On November 4, 2004, he was convicted

of robbery in violation of California Penal Code § 2111and

1 Section 211 defines robbery as “the felonious taking of personal

property in the possession of another, from his person or immediate

presence, and against his will, accomplished by means of force or fear.”
4 UNITED STATES V. GONZALEZ-FLORES

was sentenced to 210 days in county jail.2 He had two prior

misdemeanor convictions: in 2004, he was convicted of

driving without a license, and in 2001, he was convicted of

loitering in a public park after hours.3

In November 2004, after his robbery conviction,

Gonzalez-Flores was placed in removal proceedings. He

appeared pro se at a hearing before an immigration judge (IJ)

on December 29, 2004. During the hearing, the IJ asked

Gonzalez-Flores a series of questions to draw out information

relating to his eligibility for immigration relief. The IJ first

asked whether Gonzalez-Flores was married or had children,

and whether his parents were United States citizens or lawful

permanent residents. Gonzalez-Flores answered “no” to these

questions. The IJ then asked whether Gonzalez-Flores’s

parents were born, lived in, and were citizens of Mexico. 

Gonzalez-Flores answered “yes.” In response to further

questions, Gonzalez-Flores stated that no one had ever filed

a petition on his behalf so he could immigrate to the United

States, and that he was not a permanent resident of the United

States. Gonzalez-Flores also agreed with the IJ’s statement

that Gonzalez-Flores came into the United States for the first

time in 1999. The IJ then confirmed that Gonzalez-Flores

had been convicted of robbery and sentenced to 210 days in

jail.

2 The government asserts that the sentence was 240 days, but this factual

dispute does not affect our analysis.

3 Gonzalez-Flores disputes that he was convicted of loitering in the park. 

Because the district court did not resolve this dispute, we do not rely on

this misdemeanor conviction for our analysis.
UNITED STATES V. GONZALEZ-FLORES 5

After the IJ asked Gonzalez-Flores if there was any other

information he wanted to tell the court and Gozalez-Flores

said “no,” the IJ explained his conclusion:

Then, sir, then the court does find that you’ll

be removed from the United States to Mexico

based on the charges contained in the notice to

appear. He’s not eligible for any relief or any

other benefits under the immigration laws.

Specifically, he’s not eligible for cancellation

of removal because he does not have the

requisite ten years residence or the family ties

to be eligible for that form of relief.

He’s not eligible for adjustment of status

because no petition has been filed on his

behalf to allow him to adjust status.

And as for voluntary departure, I’m not [going

to] grant that form of relief. The respondent’s

been convicted of a crime of violence as well

as a crime of theft: robbery. I’m [going to]

find that negative . . . that negative aspect is

enough to overcome the, um, positive aspects

that the respondent has in this case, which are

very few except for those normally associated

with any residence of any duration. So I’m

not [going to] grant voluntary departure as a

matter of discretion.

As for any claim to citizenship, he indicated

his parents were born in Mexico, live in

Mexico, and are citizens of Mexico, as were
6 UNITED STATES V. GONZALEZ-FLORES

his grandparents. So he does not derive any

benefits through his family, and he has no fear

of persecution or torture if he goes back to

Mexico.

So there being no other relief available to him,

it is the order of the court that he be removed

from the United States to Mexico based on the

charges contained in the notice to appear.

In response to further questions, Gonzalez-Flores stated he

understood and accepted the IJ’s decision, and did not wish

to appeal it. Accordingly, the IJ ordered him removed.

Following his removal in 2004, Gonzalez-Flores illegally

reentered the United States in 2008. The government

reinstated his removal order, and removed him again on

February 29, 2008. In April 2013, he made a third illegal

entry and was arrested near the border between Mexico and

the United States. The government charged him with being

an alien found in the United States after removal, in violation

of 8 U.S.C. § 1326. He moved to dismiss the information

under § 1326(d), claiming his 2004 removal order was invalid

because the IJ had violated his due process rights by failing

to inform him that he might be eligible for voluntary

departure. The district court denied the motion on the ground

that no due process violation occurred, and even if there had

been such a violation, Gonzalez-Flores suffered no prejudice. 

Gonzalez-Flores later pleaded guilty to the § 1326 violation

in a plea agreement. The plea agreement included an appeal

waiver, but Gonzalez-Flores retained the right to bring this

appeal of the district court’s denial of his motion to dismiss

the information. We have jurisdiction over his appeal under

28 U.S.C. § 1291.
UNITED STATES V. GONZALEZ-FLORES 7

II

We review de novo a district court’s denial of an alien’s

collateral challenge to a prior deportation order under

8 U.S.C. § 1326(d). United States v. Gonzalez-Valerio,

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

As originally enacted, § 1326 did not permit collateral

attacks on a prior order of deportation. United States v.

Mendoza-Lopez, 481 U.S. 828, 837 (1987). In response to the

Supreme Court’s determination that imposition of criminal

penalties based on a prior administrative proceeding violated

due process unless there was “some meaningful review of the

administrative proceeding,” id. at 837–38, Congress added

§ 1326(d), see United States v. Arias-Ordonez, 597 F.3d 972,

976 (9th Cir. 2010). As required by Mendoza-Lopez, this

section gives a defendant the opportunity to challenge the

validity of a prior deportation order in a criminal proceeding

arising under § 1326. An alien bringing such a collateral

attack is required to prove that: “(1) the alien exhausted any

administrative remedies that may have been available to seek

relief against the order; (2) the deportation proceedings at

which the order was issued improperly deprived the alien of

the opportunity for judicial review; and (3) the entry of the

order was fundamentally unfair.” 8 U.S.C. § 1326(d).

In applying § 1326(d), our cases generally focus on a

single type of defect in a deportation hearing: the IJ’s failure

to comply with 8 C.F.R. § 1240.11(a)(2). See, e.g., VidalMendoza, 705 F.3d at 1015. Under § 1240.11(a)(2), if an

alien seeking lawful permanent resident status applies to the

IJ for a waiver of a ground of inadmissibility, the IJ “shall

inform the alien of his or her apparent eligibility to apply for

any of the benefits enumerated in this chapter and shall afford
8 UNITED STATES V. GONZALEZ-FLORES

the alien an opportunity to make application during the

hearing.” 8 C.F.R. § 1240.11(a)(2).4 We deem the IJ to have

breached its obligation to inform an alien of “apparent

eligibility” when the IJ either fails to give the alien any

information about the existence of relief for which the alien

is “apparentlyeligible,” seeUnited States v. Lopez-Velasquez,

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

Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir. 2004); United

States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000), or

when the IJ erroneously tells the alien that no relief is

possible, see Arias-Ordonez, 597 F.3d at 977; see also United

States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006);

United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th

Cir. 2004); United States v. Leon-Paz, 340 F.3d 1003, 1005

(9th Cir. 2003). An IJ may also breach this regulatory

obligation by stating that the alien is eligible for relief, but

immediately negating that statement so that “it is as if he was

told that he did not qualify for this relief,” which puts the

alien in the same position as one who is never “made aware

that he has a right to seek relief.” United States v. Melendez-

 

4

 8 CFR § 1240.11.(a)(2) provides:

2) In conjunction with any application for creation of

status of an alien lawfully admitted for permanent

residence made to an immigration judge, if the alien is

inadmissible under any provision of section 212(a) of

the Act, and believes that he or she meets the eligibility

requirements for a waiver of the ground of

inadmissibility, he or she may apply to the immigration

judge for such waiver. The immigration judge shall

inform the alien of his or her apparent eligibility to

apply for any of the benefits enumerated in this chapter

and shall afford the alien an opportunity to make

application during the hearing, in accordance with the

provisions of § 1240.8(d).
UNITED STATES V. GONZALEZ-FLORES 9

Castro, 671 F.3d 950, 954 (9th Cir. 2012) (per curiam)

(quoting Arrieta, 224 F.3d at 1079). Because an alien is

entitled to the procedure set forth in 8 C.F.R. § 1240.11(a)(2)

(as we have construed it), we have concluded that an IJ’s

failure to complywith this procedure violates the alien’s right

to procedural due process. See United States v. Muro–Inclan,

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

For purposes of § 1326(d), the IJ’s non-compliance with

§ 1240.11(a)(2) relieves the alien of the burden of proving

exhaustion of administrative remedies under § 1326(d)(1)

because “we deem the alien’s waiver of the right to an

administrative appeal to have been insufficiently considered

and intelligent.” Vidal-Mendoza, 705 F.3d at 1015 (internal

quotation marks omitted). The IJ’s regulatory error also

proves that the alien was improperly deprived of the

opportunity for judicial review pursuant to § 1326(d)(2),

because “an alien who is not made aware that he has a right

to seek relief necessarily has no meaningful opportunity to

appeal the fact that he was not advised of that right.” Arrieta,

224 F.3d at 1079. Finally, if the IJ’s error was prejudicial to

the alien, then the alien can establish that the removal order

“was fundamentally unfair” for purposes of 8 U.S.C.

§ 1326(d)(3). Vidal-Mendoza, 705 F.3d at 1016. To prove

prejudice, an alien seeking a discretionary form of relief must

make a “plausible showing” that an IJ presented with all of

the facts would exercise discretion in the alien’s favor. 

United States v. Rojas-Pedroza, 716 F.3d 1253, 1263–64 (9th

Cir. 2013). “[T]he defendant bears the burden of proving

prejudice under § 1326(d)(3).” United States v. ValdezNovoa, 780 F.3d 906, 916–17 (9th Cir. 2015).

We employ a two-step process for determining whether

an alien claiming apparent eligibility for voluntary departure
10 UNITED STATES V. GONZALEZ-FLORES

has made this showing. Rojas-Pedroza, 716 F.3d at 1263. 

First, we consider the positive and negative factors an IJ

would consider relevant to an exercise of discretion. See id.

at 1264–65. Positive factors include “long residence, close

family ties to the United States, and humanitarian needs.” Id.

at 1265. Negative factors include “the nature and underlying

circumstances of the deportation ground at issue; additional

violations ofthe immigration laws; the existence, seriousness,

and recency of any criminal record; and any other evidence

of bad character or the undesirability of the applicant as a

permanent resident.” Id. (quoting Matter of ArguellesCampos, 22 I. & N. Dec. 811, 817 (BIA 1999)).

Second, we determine whether, in light of these factors

and the circumstances of the alien’s case, the alien carried the

burden of proving “it was plausible (not merely conceivable)

that the IJ would have exercised his discretion in the alien’s

favor.” Id. at 1263 (internal quotation 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). In assessing whether

the alien carried this burden, we “focus on whether aliens

with similar circumstances received relief.” Rojas-Pedroza,

716 F.3d at 1263. “[T]he existence of a single case that is

arguably on point means only that it is ‘possible’ or

‘conceivable’ that a similarlysituated alien would be afforded

voluntary departure. That is plainly insufficient . . . .” 

Valdez-Novoa, 780 F.3d at 920–21.

III

We now turn to the facts of this case, and consider

whether Gonzalez-Flores can bring a collateral attack on his

prior deportation order under § 1326(d). Gonzalez-Flores
UNITED STATES V. GONZALEZ-FLORES 11

claims that he satisfies the three requirements for bringing

such a collateral attack because the IJ failed to inform him of

his “apparent eligibility to apply for” voluntary departure. 

See 8 C.F.R. § 1240.11(a)(2).

As a threshold matter, the record makes clear (and

Gonzalez-Flores does not dispute) that the IJ in this case did

raise the issue of Gonzalez-Flores’s eligibility for voluntary

departure. Accordingly, Gonzalez-Flores relies on MelendezCastro, and argues that the IJ told him about the availability

of voluntary departure only to tell him he did not qualify

“almost in the same breath.” See 671 F.3d at 954.

We disagree. In Melendez-Castro, the IJ stated:

The only other application you may be

eligible for is something called voluntary

departure. Voluntary departure is available to

anyone who has not been convicted of an

aggravated felony. I can deny this in my

discretion and, and [sic ] even if you were to

apply for voluntary departure I wouldn’t

grant it to you. I don’t grant voluntary

departure to anyone convicted of a crime in

the United States, so I will be denying any

other case of voluntary departure that you

may make, but I need to go through that in the

records, so that you understand.

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

explained that this statement failed to meet the requirements

of 8 C.F.R. § 1240.11(a)(2) because the IJstated that the alien

was eligible for relief, but “almost in the same breath” stated

the alien would not get the relief if he applied for it, and “[a]
12 UNITED STATES V. GONZALEZ-FLORES

reasonable person in Melendez–Castro’s position would have

been discouraged from applying 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 added). We concluded that such

a complete and immediate negation violated the alien’s

procedural right to be informed of his apparent eligibility to

apply for relief under § 1240.11(a)(2). Id.

Unlike in Melendez-Castro, the IJ here did not state an

unqualified rule that an alien in Gonzalez-Flores’s situation

could not qualify for relief. See id. Nor did the IJ raise and

then immediately negate “almost in the same breath” the

possibility of voluntary departure. See id. Rather, the IJ

raised the availability of such relief and explored it. In effect,

the IJ deemed Gonzalez-Flores to have applied for voluntary

departure, weighed Gonzalez-Flores’s equities, and reached

a conclusion on his application.5

But even if the IJ’s detailed colloquy with GonzalezFlores fell short of the requirements of § 1240.11(a)(2),

Gonzalez-Flores suffered no prejudice from any such error,

and therefore cannot demonstrate that the entry of the

removal order was “fundamentally unfair” for purposes of

§ 1326(d)(3). See Rojas-Pedroza, 716 F.3d at 1266–67. 

Applying our two-part test for prejudice, we first consider the

positive and negative factors that are relevant to the IJ’s

5 Gonzalez-Flores also argues he was not given an opportunity to

“develop the issue” or “present evidence in support of the claim.” He

does not explain, however, how the IJ’s failure to give him such an

opportunity demonstrates that Gonzalez-Flores has met the requirements

of § 1326(d), and can therefore challenge the validity ofthe removal order. 

Because Gonzalez-Flores has not “specifically and distinctly argued” this

matter in his appeal, we decline to reach this issue. Miller v. Fairchild

Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986).
UNITED STATES V. GONZALEZ-FLORES 13

exercise of discretion. Here, Gonzalez-Flores’s positive

equities are minimal: he lived in the United States for five

years, he attended high school from age 15 through the

eleventh grade, and he held a job for a few years from when

he left high school until he committed a robbery. Although

the IJ was not informed of Gonzalez-Flores’s high school

attendance and work history, these additional facts do not

contradict the IJ’s conclusion that Gonzalez-Flores’s equities

were “very few except for those normally associated with any

residence of any duration.” Because none of GonzalezFlores’s family members were United States citizens or

lawful permanent residents, and because he resided in the

United States for only five years, he lacked close family ties

to the United States or a long residence here, the most typical

favorable equities deemed important in other cases. See

Arguelles-Campos, 22 I. & N. Dec. at 817. On the other

hand, his negative equities are significant. He was convicted

of robbery, which the IJ described as “a crime of violence as

well as a crime of theft,” for which he was sentenced to 210

days in jail, plus probation. He was also convicted of a prior

misdemeanor.

Second,we consider whether Gonzalez-Flores 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 by Gonzalez-Flores involve

aliens who had far more significant positive equities, even

though they also had more significant negative equities. 

Gonzalez-Flores has pointed to no case in which an alien with

so few positive equities has been granted relief. In United

States v. Alcazar-Bustos, we held that it was plausible a

defendant would be granted voluntary departure where the

defendant had lived in the United States since he was two

months old and had a United States citizen wife and child,
14 UNITED STATES V. GONZALEZ-FLORES

even though the defendant’s criminal historyincluded firearm

possession convictions, and showed association with gang

members and prior drug use. 382 F. App’x 568, 569–71 (9th

Cir. 2010). Likewise, in United States v. Vasallo-Martinez,

we held it was plausible a defendant would be granted

voluntarydeparture where the defendant resided in the United

States for 21 years, had a United States citizen wife and child,

and owned a business, because these positive equities

outweighed the defendant’s four convictions for driving

under the influence and three unrelated misdemeanors. 

360 F. App’x 731, 732–33 (9th Cir. 2009).

Gonzalez-Flores has also identified opinions in which the

BIA held that an alien was entitled to voluntary departure, but

each of those cases similarly involved aliens with significant

positive equities. In Matter of Gonzales-Figeroa, the BIA

upheld a grant of voluntary departure where the alien had

lived in the United States for fifteen years, had a pending visa

petition filed by his lawful permanent resident mother, and

his sister and two nieces were United States citizens. 2006

WL729784, at *1–2 (BIA Feb. 10, 2006). Although the alien

in that case had four assault convictions and a conviction for

resisting arrest, the BIA credited the alien’s testimony that the

convictions were the result of a drinking problem, and that he

no longer drank after successfully completing a rehabilitation

program. Id. at *1. Similarly, in Matter of HernandezGarcia, the BIA reversed a denial of voluntary departure

where the alien had a United States citizen wife and child,

even though the alien had impersonated a United States

citizen in order to procure a passport. 2012 WL 1705671, at

*1 (BIA Apr. 11, 2012); see also Matter of PinedaCastellanos, 2005 WL3833024, at *1–2 (BIA Nov. 16, 2005)

(affirming an IJ’s grant of voluntary departure to an alien

with a lawful permanent resident wife and three children, but
UNITED STATES V. GONZALEZ-FLORES 15

indicating that such relief was barely warranted given the

negative equities of six criminal convictions). By contrast,

the BIA affirmed a denial of voluntary departure where the

alien was arrested twice for driving on a suspended license

and once for a DUI, despite the alien’s family ties to the

United States. Matter of Posadas-Posadas, 2012 WL

371659, at *1–2 (BIA Jan. 18, 2012).

As these cases illustrate, Gonzalez-Flores has failed to

carry his burden of showing that aliens with his scant positive

equities received relief. See Rojas-Pedroza, 716 F.3d at

1263. In fact, Gonzalez-Flores has failed to identify even a

single case on point, which in any event would be insufficient

on its own. See Valdez-Novoa, 780 F.3d at 920–21.

Because Gonzalez-Flores has failed to carry his burden of

showing a grant of relief was “plausible,” he has not

demonstrated that any error on the part of the IJ in informing

him of the availability of voluntary departure prejudiced him. 

See id. at 921. A removal order is “fundamentally unfair” for

purposes of § 1326(d)(3) only if the alien “suffered prejudice

as a result of the defects” in the deportation proceeding,

United States v. Ubaldo–Figueroa, 364 F.3d 1042, 1048 (9th

Cir. 2004) (internal quotation marks omitted), and therefore

Gonzalez-Flores has not demonstrated that he satisfied this

requirement. Because Gonzalez-Flores has not met all of the

requirements of § 1326(d), he may not collaterally attack his

deportation order.

AFFIRMED.