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United States Court of Appeals for the Ninth Circuit Case: 05-50979 06/12/2008 ID: 6557946 DktEntry: 45-1 Page: 1 of 20 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 05-50979 Plaintiff-Appellee, D.C. No. v. CR-05-01367-MLH RAUL BECERRIL-LOPEZ, OPINION Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding Argued November 14, 2006 Submitted June 5, 2008 Pasadena, California Filed June 12, 2008 Before: Harry Pregerson, Cynthia Holcomb Hall, and Michael Daly Hawkins, Circuit Judges. Opinion by Judge Hall 6711 Case: 05-50979 06/12/2008 ID: 6557946 DktEntry: 45-1 Page: 2 of 20 6714 UNITED STATES v. BECERRIL-LOPEZ COUNSEL Stephanie J. Lacambra, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant. Matthew J. Gardner and Mark R. Rehe, Assistant United States Attorneys, San Diego, California, for the plaintiff- appellee. Case: 05-50979 06/12/2008 ID: 6557946 DktEntry: 45-1 Page: 3 of 20 UNITED STATES v. BECERRIL-LOPEZ 6715 OPINION HALL, Circuit Judge: Raul Becerril-Lopez (“Becerril”) appeals his jury convic- tion and sentence for being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Among other claims, he argues that his prior conviction under California Penal Code § 211 does not qualify as a “crime of violence” under the sentence enhancement provision for illegal re-entry crimes. We hold that it does, and we affirm. I. Background Becerril was apprehended just north of the border near San Ysidro on July 4, 2005. Because he had previously been deported in 1995, Becerril was subsequently indicted on charges of being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a). He was convicted on this sole count after a jury trial. At the sentencing hearing on December 12, 2005, the dis- trict court found that Becerril had a base offense level of 8 and imposed a 16-level enhancement under Sentencing Guidelines § 2L1.2(b) on the basis of a 1986 conviction for robbery under California Penal Code § 211. See 8 U.S.C. § 1326(b). He was sentenced to 100 months in prison (which was the low end of the applicable Guidelines range) and three years of supervised release. Becerril filed a timely notice of appeal. II. The Conviction A. The Motion to Dismiss the Indictment Becerril first argues that the district court should have dis- missed the indictment because he was denied due process at the master calendar hearing preceding his 1995 deportation. Case: 05-50979 06/12/2008 ID: 6557946 DktEntry: 45-1 Page: 4 of 20 6716 UNITED STATES v. BECERRIL-LOPEZ We review de novo the district court’s denial of Becerril’s motion to dismiss on these grounds. United States v. Muro- Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001). [1] The Due Process Clause requires a meaningful opportu- nity for judicial review of the underlying deportation in a § 1326 prosecution. United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998). To succeed in a collateral attack on an earlier deportation, a defendant must show (1) that he exhausted his administrative remedies to appeal his removal order; (2) that the underlying removal proceedings deprived him of the opportunity for judicial review; and (3) that the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). A deportation order is fundamentally unfair if the defendant’s due process rights were violated by defects in the underlying deportation proceeding, and the defendant suffered prejudice as a result of the defects. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). At the master calendar hearing, the Immigration Judge asked whether anyone had family members who were perma- nent residents or citizens of the United States, for the pur- poses of granting relief under § 212(h) of the Immigration and Naturalization Act. The IJ also asked each person individually whether he wanted to seek an appeal. The judge did not advise the group of the possibility of voluntary departure because he had found that each person had a prior criminal conviction. Becerril did not mention his family members in the United States and did not indicate any intent to appeal his case. Now, he argues that he was entitled to relief under § 212(h), as well as voluntary departure, withdrawal of his application, and an appeal. Therefore, he argues that he suf- fered prejudice due to alleged defects in the way the hearing was conducted. 1. 212(h) Relief [2] Becerril argues that he would have been eligible for relief under § 212(h), and that the judge did not advise him of Case: 05-50979 06/12/2008 ID: 6557946 DktEntry: 45-1 Page: 5 of 20 UNITED STATES v. BECERRIL-LOPEZ 6717 this option. Under § 212(h), the Attorney General may waive removal if deportation would cause “extreme hardship” to rel- atives of the alien who are U.S. citizens or permanent legal residents. 8 U.S.C. § 1182(h)(1)(B) (1995). At Becerril’s hearing, conducted in group format, the IJ asked whether any- one had close relatives who were permanent residents or citi- zens. After engaging in a colloquy with one person, the IJ asked in Spanish whether anyone else (“Alguien más?”) qual- ified. Becerril claims that the IJ “sped through his general advisal,” and moved on from question to question without waiting for the translator. The record does not support this assertion. While the IJ did not wait for the translator at certain moments, these instances occurred only when the IJ had made a statement, not asked a question. [3] Even if the colloquy here was procedurally deficient in some way, Becerril must still show that he had “plausible grounds” for relief under this provision. United States v. Arce- Hernandez, 163 F.3d 559, 563 (9th Cir. 1998). To demon- strate the “extreme hardship” required by the statute, the defendant must show that the consequences of his being removed would go beyond “the common results of deporta- tion,” such as a loss of financial support for relatives in the United States. Id. at 564 (citing Shooshtary v. INS, 39 F.3d 1049 (9th Cir. 1994)). We will find prejudice only after a clear, detailed demonstration that the defendant provided “non-economic familial support” or “something more” than financial support. Arrieta, 224 F.3d at 1082. Becerril’s brief presents only a few abstract claims about financial support for his son, a U.S. citizen, and his father, a legal resident of the United States. We hold that he has failed to demonstrate any prejudice here. 2. Voluntary Departure [4] Becerril claims that he was entitled to be advised of what he calls “pre-conclusion” voluntary departure under Case: 05-50979 06/12/2008 ID: 6557946 DktEntry: 45-1 Page: 6 of 20 6718 UNITED STATES v. BECERRIL-LOPEZ § 242 of the INA, codified at 8 U.S.C. § 1252(b) (1995).1 As it existed in 1995, this provision gave the Attorney General discretion to waive deportation hearings for aliens who depart voluntarily “in lieu of initiating deportation proceedings.” Contreras-Aragon v. INS, 852 F.2d 1088, 1094 (9th Cir. 1988) (emphasis in original). The Supreme Court has noted that, under the statute at the time, “[a]rrested aliens [were] almost always offered the choice of departing the country vol- untarily, . and as many as 98% of them [took] that course.” Reno v. Flo-res, 507 U.S. 292, 307 (1993).2 [5] The Attorney General was not required, however, to grant this form of relief automatically to aliens who were eli- gible. See Perales v. Casillas, 903 F.2d 1043, 1050 (5th Cir. 1990) (holding that the “permissive” language of the statute and implementing regulations gave the Attorney General “un- fettered” discretion to grant or deny pre-hearing voluntary departure). Because pre-hearing voluntary departure would have been granted, if at all, before the hearing, we cannot hold that the IJ violated Becerril’s rights by failing to mention it at the hearing itself.3 1That statute provided: “In the discretion of the Attorney General, . deportation proceedings . need not be required in the case of any alien who admits to belonging to a class of aliens who are deportable . if such alien voluntarily departs from the United States at his own expense, or is removed at Government expense as hereinafter authorized, unless the Attorney General has reason to believe that such alien is deportable under paragraphs (2), (3) or (4) of section 1251(a) of this title.” 8 U.S.C. § 1252(b) (1994). 2Voluntary departure might also have been available after the deporta- tion proceedings under INA § 244, 8 U.S.C. § 1254(e) (1994). See Rojas- Garcia v. Ashcroft, 339 F.3d 814, 827 (9th Cir. 2003). Becerril does not contend he should have been advised of this possibility, however. The “pre-conclusion” departure Becerril describes, which appears in INA § 242, would have been granted before the master calendar hearing and will be referred to as “pre-hearing” voluntary departure. 3We note that two unpublished memorandum dispositions issued prior to this decision held otherwise. See United States v. Nungaray-Rubalcaba, 229 Fed. App’x 436 (9th Cir. Apr. 10, 2007); United States v. Basulto- Pulido, 219 Fed. App’x 717 (9th Cir. Jan. 25, 2007). Case: 05-50979 06/12/2008 ID: 6557946 DktEntry: 45-1 Page: 7 of 20 UNITED STATES v.
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