United States v. Francisco Lopez-Reyes

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2020
• Docket: 19-10344
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10344

Plaintiff-Appellee, D.C. No. 2:19-cr-00328-DWL-1

v. MEMORANDUM* FRANCISCO LOPEZ-REYES, a.k.a. Francisco G. Lopez,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding

Argued and Submitted November 17, 2020 Phoenix, Arizona

Before: TALLMAN, BYBEE, and BADE, Circuit Judges.

Francisco Lopez-Reyes appeals his conviction following his conditional

guilty plea to one count of illegal reentry in violation of 8 U.S.C. § 1326(a).

Specifically, Lopez-Reyes collaterally challenges, under § 1326(d), the deportation

order that served as a predicate for his illegal reentry conviction. He argues that

the order was fundamentally unfair because he was not properly advised of his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Fifth Amendment right to counsel and therefore did not validly waive that right,

which deprived him of the opportunity to apply for a U visa based on his status as

the victim of a stabbing that occurred when he was a teenager. Because the parties

are familiar with the facts, we do not recite them except as necessary to explain our

decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo a district court’s denial of a motion to dismiss an

indictment under § 1326(d). United States v. Cisneros-Rodriguez, 813 F.3d 748,

755 (9th Cir. 2015). Factual findings are reviewed for clear error. Id. In order to

prove that his 2011 administrative removal proceedings were “fundamentally

unfair,” Lopez-Reyes must show that: (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.” Id. at 756 (citation omitted). In evaluating his

claim, the district court elected not to decide whether Lopez-Reyes’s due process

rights were violated, instead finding that Lopez-Reyes could not show that his

removal was fundamentally unfair because he failed to demonstrate prejudice

resulting from the alleged violation. We agree.

Although Lopez-Reyes “does not have to show that he actually would have

been granted relief” from removal to establish prejudice, he still must “show that

he had a ‘plausible’ ground for relief from deportation.” United States v. Ubaldo-

Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (quoting United States v. Arrieta,

2 224 F.3d 1076, 1079 (9th Cir. 2000)). Plausibility requires a showing “that relief

was more than ‘possible,’” but not “that it was ‘probable.’” Cisneros-Rodriguez,

813 F.3d at 761. Here, the district court correctly found that Lopez-Reyes did not

show that it was plausible that he would have received a U visa.

A U visa application would have required a certification from the Phoenix

Police Department (“PPD”) attesting that Lopez-Reyes was a victim of a

qualifying crime, possessed information about the crime, and “[had] been, is being,

or [was] likely to be helpful to an investigation or prosecution of” the crime. 8

C.F.R. § 214.14(c)(2)(i). Additionally, because of his prior state-law convictions

for armed robbery and attempted armed robbery Lopez-Reyes would have had to

obtain a discretionary waiver of inadmissibility from U.S. Citizenship and

Immigration Services (“USCIS”).1

The district court weighed the evidence, including the police reports

documenting the investigation into the stabbing of Lopez-Reyes and several others

in 2007, and two expert declarations submitted on behalf of Lopez-Reyes opining

that he would have received the necessary certification and waiver of

inadmissibility. The district court found that Lopez-Reyes was the only witness in

1 If USCIS determined that Lopez-Reyes’s prior convictions were for “violent or dangerous crimes,” it would “only exercise favorable discretion” to grant a waiver of inadmissibility in the presence of “extraordinary circumstances.” 8 C.F.R. § 212.17(b)(2).

3 the stabbing investigation “who was singled out by the police as having lied to

them,” and that “although Lopez-Reyes initially suggested he was willing to assist

in the prosecution, the case fell apart after he and the other witnesses refused to

return the PPD detective’s messages.” Given these facts, and because of the

“seriousness of his criminal history,” the court properly concluded that Lopez-

Reyes would have presented as a “particularly poor candidate” for a U visa,

notwithstanding the views expressed by his expert witnesses. In the words of the

district court, Lopez-Reyes was “a three-time armed robber whose half-hearted

efforts to cooperate with the police concerning an earlier crime were marred by lies

and a failure to follow through when it counted.”

The district court did not clearly err in its findings. As a result, we conclude

that Lopez-Reyes has not shown that it is plausible he would have obtained a

discretionary U visa if he had been advised by counsel during his 2011

administrative removal proceedings. Accordingly, the district court did not err in

denying Lopez-Reyes’s motion to dismiss the indictment under § 1326(d).

AFFIRMED.