United States v. Alejandro Limon-Lopez

647 F. App'x 829

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 12, 2016
• Docket: 15-50147
• Status: Unpublished

Opinion

MEMORANDUM ***

Alejandro Limon-Lopez, a Mexican citizen, was deported in 2007 as an alien present without permission. Although Li-mon-Lopez’s 2001 conviction for corporal injury on a spouse gave the government a second basis for his deportation, the government chose to proceed only on the present-without-permission charge because it lacked clear documentary proof of the date of his conviction.

When Limon-Lopez was found in California seven years later, he moved to dismiss his illegal-reentry indictment under 8 U.S.C. § 1326(d), arguing that the immigration judge (“IJ”) violated his due process rights by not advising him that he was apparently eligible for voluntary departure. The district judge denied the motion, and Limon-Lopez appeals. Reviewing de novo, we affirm.

To successfully challenge a deportation order based on an IJ’s failure to inform an alien of his apparent eligibility for voluntary departure instead of removal, the defendant must show that (1) the IJ’s failure violated his due process rights and (2) he suffered prejudice as a result. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000). “[A]n alien who is statutorily barred from obtaining relief from removal cannot be prejudiced by an IJ’s failure to inform him about the possibility of applying for [that] relief ... even if the government does not introduce noticeable documentation of the alien’s” disqualifying conviction before the IJ. United States v. Bustos-Ochoa, 704 F.3d 1053, 1057 (9th Cir.2012) (per curiam). Because Limon-Lopez’s corporal-injury-on-a-spouse conviction disqualified him from obtaining a voluntary departure, he was not prejudiced by the IJ’s failure to inform him that he was eligible for that relief.

AFFIRMED.

*** This disposition is not appropriate for publication and is not precedent except as provid-, ed by 9th Cir. R. 36-3.