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United States v. Jose Zavala-Zavala

Court of Appeals for the Ninth Circuit · 12-50298 · 2013-06-06 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Jose Armando ZAVALA-ZAVALA, Defendant-Appellant

Area
other
Panel
Thomas (author), Barry G. Silverman, Raymond C. Fisher

Analysis

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Opinion

FILED NOT FOR PUBLICATION JUN 06 2013

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50298 Plaintiff - Appellee, D.C. No. 3:11-cr-05782-JM-1 v. MEMORANDUM * JOSE ARMANDO ZAVALA-ZAVALA, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, Senior District Judge, Presiding Submitted June 4, 2013 ** Pasadena, California Before: THOMAS, SILVERMAN, and FISHER, Circuit Judges.

José Zavala-Zavala appeals the district court’s denial of his 8 U.S.C. § 1326(d) motion to dismiss the indictment, which charged him with being found in * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). the United States after removal in violation of 8 U.S.C. § 1326(a) and illegal entry with a prior illegal reentry in violation of 8 U.S.C. § 1325. We affirm.

The immigration judge violated due process by not allowing Zavala-Zavala to apply for voluntary departure before denying relief. See United States v. Melendez-Castro, 671 F.3d 950, 954 (9th Cir. 2012) (per curiam). However, Zavala-Zavala’s argument that he need not establish prejudice is without merit.

See id. at 954-55.

Contrary to Zavala-Zavala’s assertion, the district court applied the correct prejudice test when it considered the favorable and unfavorable factors to determine whether it was plausible that an immigration judge would have granted Zavala-Zavala voluntary departure pursuant to 8 U.S.C. § 1229c(a). See id.;

United States v. Pallares-Galan, 359 F.3d 1088, 1104 (9th Cir. 2004). In light of Zavala-Zavala’s more than 25 previous voluntary returns to Mexico and the minimal positive equities, it was not plausible that an immigration judge would have granted Zavala-Zavala voluntary departure in 2006.

AFFIRMED.

Cites, in this corpus