USA v. Jose Ramirez-Arreola, No. 10-50232 (9th Cir. 2011)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 18 2011 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 10-50232 D.C. No. 3:09-cr-00867-MMA-1 v. MEMORANDUM* JOSE HUMBERTO RAMIREZARREOLA, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding Argued and Submitted April 13, 2011 Pasadena, California Before: D.W. NELSON, BYBEE, and M. SMITH, Circuit Judges. Jose Ramirez-Arreola appeals his conviction and forty-one-month sentence for attempted reentry after deportation in violation of 8 U.S.C. § 1326. He contends that the underlying deportation was invalid because the Immigration Judge (IJ) failed to advise him of his eligibility for voluntary departure. Because * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the parties are familiar with the factual and procedural history of this case, we do not recount additional facts except as necessary to explain our decision. We affirm. An IJ must inform an alien of his or her apparent eligibility for relief from deportation, 8 C.F.R. § 1240.11(a)(2), and [w]e have repeatedly held that an IJ s failure to so advise an alien violates due process and can serve as the basis for a collateral attack to a deportation order where . . . the order is used as the predicate for an illegal reentry charge under § 1326, United States v. Lopez-Velasquez, 629 F.3d 894, 897 (9th Cir. 2010) (en banc). Ramirez-Arreola contends that at the time of his deportation hearing, he was eligible for voluntary departure because he could have shown that he was a person of good moral character under former 8 U.S.C. § 1254(e) (repealed 1996). An alien cannot make that showing, however, if he or she admits having committed . . . acts which constitute the essential elements of . . . a violation of . . . any law or regulation . . . relating to a controlled substance. 8 U.S.C. § 1182(a)(2)(A)(i)(II); see also 8 U.S.C. § 1101(f)(3). Because RamirezArreola admitted to selling hashish, he could not have qualified as a person of good moral character and therefore was statutorily ineligible for voluntary departure. Accordingly, even if there were a due process violation, Ramirez-Arreola s 2 collateral attack fails because he has not established prejudice. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004). AFFIRMED. 3
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