FILED

NOT FOR PUBLICATION MAR 28 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50533

Plaintiff - Appellee, D.C. No. 3:09-cr-03837-JAH-1

v.

MEMORANDUM*

JOSE MERAZ-OLIVERA,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Argued and Submitted February 6, 2012 Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

Jose Meraz-Olivera appeals his jury conviction on a one count indictment

for violating 8 U.S.C. § 1326, and the district court’s denial of his motion to

dismiss the indictment. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. The district court did not err in denying Meraz-Olivera’s motion to

dismiss the indictment as improperly predicated on the August 2000 expedited

removal order. We have jurisdiction to resolve his collateral challenge to that

order because “there must be some meaningful review” of that administrative

action where, as here, it plays “a critical role in the subsequent imposition of a

criminal sanction.” United States v. Mendoza-Lopez, 481 U.S. 828, 837 (1987).

Meraz-Olivera “can succeed in this collateral challenge only if he is able to

demonstrate 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.” United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir. 2000)

(quotation omitted). Neither element is satisfied here.

Meraz-Olivera was not denied due process by the immigration officer’s

failure to inform him that he had the right to withdraw the application for

admission “in the discretion of the Attorney General.” 8 U.S.C. § 1225(a)(4).

“[T]he Supreme Court has ruled that when Congress enacts a procedure, aliens are

entitled to it.” United States v. Barajas-Alvarado, 655 F.3d 1077, 1084 (9th Cir.

2011). Here, Meraz-Olivera received all of the process required under 8 U.S.C. §

1225(b)(1)(A)(I). Neither the statute, nor the regulations, require that an

immigration officer advise the alien of his opportunity to request withdrawal of his

2 application for admission, subject to the Attorney General’s discretion. See id.; 8

C.F.R. § 235.3 (procedures for expedited removal).

Meraz-Olivera suffered no prejudice because he had no plausible grounds

for relief. See Barajas-Alvarado, 655 F.3d at 1089 (“Where the relevant form of

relief is discretionary, the alien must make a plausible showing that the facts

presented would cause the Attorney General to exercise discretion in his favor.”)

(quotation omitted). Meraz-Olivera falsely claimed that he was a United States

citizen to the primary immigration officer. During a secondary inspection, he

admitted that he had lied and that he knew that his actions were illegal. An alien

who attempts to enter the United States by fraudulent means is ineligible for

withdrawal under 8 U.S.C. § 1225(a)(4). See In re Guttierez, 19 I. & N. Dec. 562,

565 (BIA 1988); INS Inspector’s Field Manual § 17.2(A) (2001) (“An expedited

removal order should ordinarily be issued, rather than permitting withdrawal, in

situations where there is obvious, deliberate fraud on the part of the applicant.”).

An alien does not have the right to withdraw his application for admission, 8

C.F.R. § 235.4; here the immigration officer exercised his discretion to proceed

with expedited removal.

2. Nor did the district court err by giving the Ninth Circuit model jury

instruction on reasonable doubt. See United States v. Velasquez, 980 F.2d 1275,

3 1278 (9th Cir. 1992) (reviewing reasonable doubt instruction de novo). We reject

Meraz-Olivera’s arguments that the model instruction: (1) improperly forecloses

speculation as a basis for having a reasonable doubt; (2) fails to direct jurors that

proof beyond a reasonable doubt cannot be based on speculation; and (3) misstates

the presumption of innocence because it instructs that reasonable doubt “may

arise,” from the evidence. The model instruction correctly states the law, and does

not “detract from the heavy burden suggested by the term ‘reasonable doubt’

standing alone.” Id.

AFFIRMED.

4

FILED

United States v. Meraz-Olivera, No. 10-50533 MAR 28 2012

MOLLY C. DWYER, CLERK

REINHARDT, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

I agree with the majority that the district court did not err in instructing the jury

on reasonable doubt. I disagree, however, with the majority’s resolution of Meraz’s

due process claim. The Due Process Clause required that Meraz be notified of the

opportunity to ask to withdraw his application for admission, and Meraz was

prejudiced by the deprivation of that right. His conviction should be reversed.

The majority subverts the essential requirement of constitutional due process

in denying Meraz’s claim because he “received all of the process required under 8

U.S.C. § 1225(b)(1)(A)(I).” Memorandum at 2. It is true that “‘when Congress enacts

a procedure, aliens are entitled to it.’” Id. (quoting United States v. Barajas-Alvarado,

655 F.3d 1077, 1084 (9th Cir. 2011)). It is not true, however, that an alien’s due

process rights in the context of a criminal prosecution are limited to those prescribed

by statute or regulation. The Constitution requires that individuals receive process that

is “‘meaningful’ and ‘appropriate to the nature of the case’” before they are deprived

of any protected interest, independent of whether or not such process is mandated by

statutes or regulations. Bell v. Burson, 402 U.S. 535, 541-42 (1971) (citation omitted).

If compliance with statutory or regulatory procedures were itself sufficient to satisfy the constitutional command, then the Due Process Clause would be deprived of all

substance.1

Had the majority properly conducted the due process analysis that it chose to

bypass, it would have concluded that Meraz was entitled to be informed that he had

the right to ask to withdraw his application for admission. We have held that aliens

have a due process right to be apprised of all forms of relief for which they might

reasonably be eligible. See United States v. Melendez-Castro, No. 10-50620, 2012 WL

130348, at *2 (9th Cir. Jan. 18, 2012); United States v. Arrieta, 224 F.3d 1076, 1079

(9th Cir. 2000). Moreover, all three factors of the due process standard of Mathews

v. Eldridge, 424 U.S. 319 (1976), weigh in Meraz’s favor: an alien’s interest in being

allowed to withdraw his application is immense, the failure to inform an alien of the

right to seek withdrawal poses an unacceptably high risk that the alien will be denied

a benefit that he would receive if he were to ask for it, and the administrative burden

of requiring such disclosure is minimal. See id. at 335.

1 Although “non-admitted aliens are not entitled to any procedure vis-à-vis their admission or exclusion,” Barajas-Alvarado, 655 F.3d at 1084; see United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950), such aliens are entitled to due process review of their immigration proceedings when those proceedings form the basis of a subsequent criminal prosecution. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987); see Barajas-Alvarado, 655 F.3d at 1085 (applying Mendoza- Lopez to expedited removal proceedings). To hold in the context of a criminal prosecution that the Due Process Clause requires nothing more than compliance with statutory or regulatory procedures is wholly inconsistent with Mendoza-Lopez.

-2- I also disagree with the majority’s conclusion that Meraz was not prejudiced by

the failure to inform him of his right to seek withdrawal of his application. “An alien

seeking to prove prejudice need not establish that he definitely would have received

immigration relief, but only that he had ‘plausible grounds’ for receiving such relief.”

Barajas-Alvarado, 655 F.3d at 1089. In light of the agency’s criteria for allowing the

withdrawal of an application for admission, and in light of the fact that withdrawal is

offered to an overwhelming proportion of aliens who would otherwise be removed on

an expedited basis, Meraz might well have been permitted to withdraw his application

had he asked to do so. See Insp. Field Manual 17.2(a), available at FIM-INSFMAN

17.2 on Westlaw; U.S. Dep’t of Homeland Security, Office of Immigration Statistics,

Immigration Enforcement Actions: 2004 Annual Report 6 (2005) (“Approximately

184,000 foreign national[s] were determined to be inadmissible in 2004 for reasons

that made them subject to expedited removal. However, 129,000 of those aliens were

allowed to withdraw their application for admission.”). Meraz presented no false

documents to immigration officers, he had never previously been removed, and he has

three U.S. citizen children. Although an alien who has committed “obvious, deliberate

fraud” (such as the use of “counterfeit or fraudulent documents”) may not “ordinarily”

be allowed to withdraw his application for admission, id. (emphasis added), this

guidance hardly implies that withdrawal is to be denied in all such cases. Meraz,

-3- moreover, did not use “counterfeit or fraudulent documents” at all; he merely stated

that he was a citizen of the United States before admitting at secondary inspection that

he was not. The majority’s rationale comes close to saying that no alien who is subject

to expedited removal can show that he might plausibly have been allowed to withdraw

his application, since any such alien must have tried to enter the country without legal

authorization. Such a holding is plainly inconsistent with the agency’s own statistical

report that a large majority of aliens in Meraz’s position are granted the relief of which

he was not even informed.

I therefore respectfully dissent.

-4-