United States v. Dioncio Labastida

MEMORANDUM

1. The retroactivity principle articulated in INS v. St. Cyr, 533 U.S. 289, 326 , 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001), applies only to prior convictions by plea bargain. See Armendariz-Montoya v. Sonchik, 291 F.3d 1116, 1121-22 (9th Cir.2002). Because Labastida’s 1989 conviction was by jury trial, denial of relief on account of that conviction did not render his 1992 deportation order “fundamentally unfair.” 8 U.S.C. 1326(d)(3).

2. “[A] criminal conviction cannot be attacked collaterally in a deportation proceeding.” Mendez-Alcaraz v. Gonzales, 464 F.3d 842 , 845 n. 14 (9th Cir.2006). Accordingly, Labastida’s allegations about his prior criminal proceedings, if true, were not a “plausible ground for relief from deportation,” United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir.2004) (internal quotation marks omitted), and so couldn’t render his deportation orders fundamentally unfair.

3. “[Fjamily ties and responsibilities are not ordinarily relevant in determining whether a departure [from the applicable Guidelines range] may be warranted.” U.S.S.G. § 5H1.6. Labastida’s adult children living in the United States do not present an exceptional case, so…