NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

FRANCISCO BANUELOS-HARO, 

Defendant-Appellant.

No. 17-50116 

D.C. No. 3:16-cr-01339-H-1 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Marilyn L. Huff, District Judge, Presiding

Argued and Submitted July 12, 2018

Pasadena, California

Before: BERZON, FISHER,** and WATFORD, Circuit Judges.

Francisco Banuelos-Haro pleaded guilty to being found in the United States 

after being previously removed under 8 U.S.C. § 1326(a) and (b), but preserved the 

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

indictment. On appeal, Banuelos-Haro argues (1) that he was not removable as 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable D. Michael Fisher, United States Circuit Judge for the 

U.S. Court of Appeals for the Third Circuit, sitting by designation.

FILED

OCT 23 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-50116 

charged in 2002 and 2005, and (2) that his 2002 removal order is invalid because 

the Immigration Judge violated due process and Banuelos-Haro suffered prejudice. 

We disagree on both points and affirm. 

This Court has jurisdiction under 28 U.S.C. § 1291. We “review[] de novo

the denial of a motion to dismiss” an indictment under 8 U.S.C. § 1326, “when the 

motion to dismiss is based on alleged due process defects in an underlying 

deportation proceeding.” United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th 

Cir. 2001). We also review de novo “[t]he determination whether a prior 

conviction is an aggravated felony.” United States v. Bonilla-Montenegro, 331 

F.3d 1047, 1049 (9th Cir. 2003). 

To convict a defendant of illegal reentry under 8 U.S.C. § 1326, “the 

Government must establish that the defendant ‘left the United States under order of 

exclusion, deportation, or removal, and then illegally reentered.’” United States v. 

Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (quoting United States v. BarajasAlvarado, 655 F.3d 1077, 1079 (9th Cir. 2011)). Defendants who are charged 

under § 1326(a) and (b) may attack the validity of the predicate removal order 

under § 1326(d). To mount a successful collateral attack on the removal order, the 

defendant alien must show “(1) [he] 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 [him] of the 
3 17-50116 

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

unfair.” 8 U.S.C. § 1326(d). Under our precedents, “if [the] Defendant was not 

convicted of an offense that made him removable under the INA to begin with, he 

is excused from proving the first two requirements,” United States v. Ochoa, 861 

F.3d 1010, 1015 (9th Cir. 2017), and his removal is deemed fundamentally unfair 

in satisfaction of the third. United States v. Aguilera-Rios, 769 F.3d 626, 630 (9th 

Cir. 2014). 

The 2002 Notice to Appear charged Banuelos-Haro with being removable 

under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had previously been convicted of 

an aggravated felony. The term “aggravated felony” includes “a theft offense 

(including receipt of stolen property) or burglary offense for which the term of

imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). Banuelos-Haro’s 

prior conviction was for receipt of stolen property under California Penal Code 

§ 496.1 (now § 496(a)). He was sentenced to two years. 

To determine whether a state conviction is an “aggravated felony,” courts 

employ the categorical approach, comparing “the elements of the state statute of 

conviction to the generic definition of a theft offense.” Verdugo-Gonzalez v. 

Holder, 581 F.3d 1059, 1060 (9th Cir. 2009) (citing Taylor v. United States, 495 

U.S. 575, 598-99 (1990)). This Court has held that receipt of stolen property under 

§ 496.1 is a categorical match to “[t]he BIA’s reasonable interpretation of the 
4 17-50116 

elements of generic receipt of stolen property [under § 1101(a)(43)(G)].” United 

States v. Flores, 901 F.3d 1150, 1160 (9th Cir. 2018); see also Verdugo-Gonzalez, 

581 F.3d at 1061. Because Banuelos-Haro was removable as charged, his 2002 

removal order supported the charges under § 1326(a) and (b). 

Banuelos-Haro also does not convince this Court that the Immigration 

Judge’s failure to inform him of his eligibility for relief in 2002 resulted in 

prejudice and invalidated the removal order. Immigration Judges are required to 

inform respondents in removal proceedings of their eligibility for relief, and failure 

to do so is a due process violation that excuses the respondent from demonstrating 

two of the required prongs of § 1326(d): exhaustion of administrative remedies and 

deprivation of judicial review. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 

1049-50 (9th Cir. 2004). That leaves the third prong: fundamental unfairness. 8 

U.S.C. § 1326(d)(3). 

A defendant may show fundamental unfairness if “(1) [his] due process 

rights were violated by defects in his underlying deportation proceeding, and (2) he 

suffered prejudice as a result of the defects.” Ubaldo-Figueroa, 364 F.3d at 1048

(quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998)). A 

defendant demonstrates prejudice if he “show[s] that he had ‘plausible grounds for 

relief’ from the removal order.” Raya-Vaca, 771 F.3d at 1206 (quoting United 

States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996)). To determine 
5 17-50116 

the plausibility of discretionary relief from removal, the Court first identifies 

factors that would have been relevant to the adjudicator’s discretion, and then 

decides if, “in light of the factors relevant to the form of relief being sought, and 

based on the unique circumstances of the alien’s own case, it was plausible” that he

would have received discretionary relief. United States v. Rojas-Pedroza, 716 F.3d 

1253, 1263 (9th Cir. 2013) (internal quotation marks omitted) (quoting Barajas–

Alvarado, 655 F.3d at 1089). 

Because the Government conceded that the Immigration Judge violated due 

process, Banuelos-Haro needed only to demonstrate that he suffered prejudice. To 

do so, Banuelos-Haro argued that it was plausible he would have received relief 

under the former § 212(c) of the INA, which provided for discretionary 

cancellation of removal for lawful permanent residents. INS v. St. Cyr, 533 U.S. 

289, 295 (2001). However, it is not plausible that Banuelos-Haro would have 

received relief under § 212(c). That relief was determined in part by balancing 

positive and negative factors. Yepes-Prado v. INS, 10 F.3d 1363, 1365-66 (9th Cir. 

1993). Positive factors included family ties, duration of residence, hardship to the

individual and his family, service in the U.S. armed forces, employment history, 

value to the community, rehabilitation in light of a criminal record, and evidence of 

good character. Id. at 1366. Negative factors included the nature of the ground for 

deportation, violations of immigration laws, a recent or serious criminal record, 
6 17-50116 

and other evidence of poor character. Id. To overcome a serious crime or pattern of 

serious criminality, respondents were required to meet a heightened standard, and

“present[] unusual or outstanding equities to warrant discretionary relief.” Id. 

Banuelos-Haro would have been subject to this heightened standard for 

§ 212(c) relief, and it is not plausible that he would have demonstrated unusual or 

outstanding factors warranting relief. Banuelos-Haro cited several positive factors, 

including his sobriety starting in 1995, his efforts to help his brothers become 

sober, and a large extended family living in the United States, but nothing unusual 

or outstanding. Furthermore, the value of these positive equities was undermined 

because Banuelos-Haro did not support them with evidence. See, e.g., United 

States v. Gonzalez-Valerio, 342 F.3d 1051, 1057 (9th Cir. 2003). 

Because Banuelos-Haro’s 2002 removal order was valid on account of his 

conviction for receipt of stolen property under California Penal Code § 496.1, an 

aggravated felony, and he was not prejudiced by the Immigration Judge’s due 

process violation, we affirm the district court’s denial of his motion to dismiss the 

indictment and his conviction under 8 U.S.C. § 1326.

AFFIRMED.