NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 18 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30038

Plaintiff-Appellee, D.C. No. 2:19-cr-00165-TOR-1 v.

ARMANDO SANTOS-SANTOS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding

Argued and Submitted October 6, 2021 Seattle, Washington

Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges. Dissent by Judge PAEZ.

Armando Santos-Santos was indicted on one count of illegal reentry after

removal in violation of 8 U.S.C. § 1326. After the district court denied his motion

to dismiss the indictment, Santos-Santos pled guilty to the charge while reserving

the right to appeal the denial of that motion. Santos-Santos argues on appeal that

the district court should have dismissed the indictment because his underlying

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. order of removal was rendered invalid by due process violations at his hearing

before the immigration judge. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

A defendant charged with unlawful reentry may bring “a collateral attack

challenging the validity of his underlying deportation order because it serves as a

predicate element of his conviction.” United States v. Melendez-Castro, 671 F.3d

950, 953 (9th Cir. 2012) (per curiam). The defendant must demonstrate, among

other things, that “the entry of the order was fundamentally unfair.” 8 U.S.C.

§ 1326(d)(3). The entry of a removal order is “fundamentally unfair” only if the

noncitizen suffers prejudice resulting from a due process violation. United States

v. Gonzalez-Flores, 804 F.3d 920, 927–28 (9th Cir. 2015).

Here, Santos-Santos contends that he suffered prejudice because in the

absence of the alleged due process violations, he could have received voluntary

departure relief. To succeed on this argument, Santos-Santos must make a

“‘plausible showing’ that an [immigration judge] presented with all of the facts

would exercise discretion in [his] favor.” Id. at 927 (citation omitted). In making

this determination, we weigh the positive and negative equities that an immigration

judge would have considered. Id. Positive equities include “long residence, close

family ties to the United States, and humanitarian needs,” while negative equities

include “the existence, seriousness, and recency of any criminal record” and “any

2 other evidence of bad character or the undesirability of the applicant as a

permanent resident.” United States v. Rojas-Pedroza, 716 F.3d 1253, 1265 (9th

Cir. 2013) (citations omitted).

Santos-Santos’s negative equities at the time of his removal proceeding

included convictions for driving without a license in 2006 and 2008. More

significantly, in 2009 he was convicted of driving under the influence (“DUI”),

which is considered a “serious negative factor” in the voluntary departure analysis.

Id. The seriousness of this conviction is further underscored by Santos-Santos’s

blood alcohol level, which was significantly over the legal limit. Within months of

that offense, he resumed driving and was convicted again of driving without a

license and of failing to yield the right of way. Lastly, he was convicted of

shoplifting, which ultimately led to his removal.

Santos-Santos presents minimal positive equities. While he resided and

worked in the United States for several years, his only family ties to lawful

permanent residents or citizens of the United States are his nephews. And while he

was at the time engaged to a United States citizen, they did not have any children

and he was not the sole earner in that relationship. We therefore find that Santos-

Santos fails to carry his burden of showing that voluntary departure would

plausibly have been granted. See, e.g., Matter of Sanchez-Rodriguez, 2017 WL

8785847, at *1 (BIA Dec. 6, 2017) (hardship resulting from noncitizen’s residence

3 in the country for 7 years, citizen fiancée, and citizen children did not outweigh his

conviction for a hit and run and arrest for DUI); Matter of Hernandez, 2016 WL

807203, at *2 (BIA Feb. 5, 2016) (noncitizen’s convictions for DUI with a blood

alcohol level more than twice the legal limit and fleeing the scene of an accident

and his extended period of driving without a license were “compelling adverse

factors” that outweighed his significant term of residence and consistent

employment).

Santos-Santos cites to several cases, but none support his argument. See

United States v. Valdez-Novoa, 780 F.3d 906, 916 (9th Cir. 2015) (noting that we

have “placed the burden on the defendant to show that he was prejudiced . . . [and]

evaluated the authorities cited by the defendant” to determine if he has carried his

burden). Matter of Pina-Galindo, 26 I. & N. Dec. 423 (BIA 2014), did not address

the noncitizen’s counterbalancing positive equities. And the record in Matter of

Battista, 19 I. & N. Dec. 484 (BIA 1987), reflects compelling positive equities, like

the noncitizen’s marriage to a citizen who was pregnant with his child, that are

absent in the present case.

Because Santos-Santos has failed to carry his burden on the prejudice

element of his collateral challenge, we need not reach the remaining issues raised

on appeal. We therefore affirm the district court’s denial of his motion to dismiss

the indictment.

4

AFFIRMED.

5 United States v. Santos-Santos, No. 20-30038

FILED

JUL 18 2022

Paez, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Santos-Santos’s removal proceedings violated his due process rights and

deprived him of judicial review, therefore he is constitutionally entitled to

collaterally attack his removal order. See United States v. Mendoza-Lopez, 481

U.S. 828, 837-39 (1987); United States v. Gonzalez-Villalobos, 724 F.3d 1125,

1129 (9th Cir. 2013). Rather than affirm on an issue that the government never

argued and the district court never addressed, we should afford Santos-Santos that

right and decide the issues raised on appeal. Because he has satisfied the first two

prongs of 8 U.S.C. § 1326(d) and shown a due process violation, I would reverse

and remand for the district court to address prejudice in the first instance.

1. To sustain a collateral attack under § 1326(d), Santos-Santos must show

that (1) he “exhausted any administrative remedies that may have been available to

seek relief against the order; (2) the deportation proceedings at which the order was

issued improperly deprived [him] of the opportunity for judicial review; and (3) the

entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(1)-(3). An order

is fundamentally unfair if “the deportation proceeding violated the [noncitizen’s]

due process rights and the [noncitizen] suffered prejudice as a result.” United

States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010). A noncitizen may

waive the right to appeal to the Board of Immigration Appeals (“BIA”) and

consequently, to seek judicial review, but due process requires that the waiver be “considered and intelligent.” Mendoza-Lopez, 481 U.S. at 840; United States v.

Ramos, 623 F.3d 672, 680 (9th Cir. 2010).

Santos-Santos’s waiver of his right to appeal was not “considered or

intelligent,” and thus violated due process, for two reasons. First, the immigration

judge (“IJ”) failed to advise Santos-Santos of his apparent eligibility for pre-

conclusion voluntary departure. See Mendoza-Lopez, 481 U.S. at 840 (holding that

an appeal waiver is invalid if the noncitizen was not advised of the eligibility for

relief); Gonzalez-Villalobos, 724 F.3d at 1131. 1 Second, the IJ conducted a “mass

silent waiver” that “impermissibly presume[s] acquiescence in the loss of the right

to appeal and fails to overcome the presumption against waiver.” United States v.

Lopez-Vasquez, 1 F.3d 751, 755 (9th Cir. 1993) (internal quotations and citation

omitted); see also United States v. Zarate-Martinez, 133 F.3d 1194, 1197-98 (9th

Cir. 1998), overruled on other grounds recognized in United States v. Ballesteros-

Ruiz, 319 F.3d 1101, 1105 (9th Cir. 2003); United States v. Pallares-Galan, 359

F.3d 1088, 1096-97 (9th Cir. 2004).

The Supreme Court has instructed that if an appeal waiver in a removal

proceeding is not “considered or intelligent,” the noncitizen was deprived of the

1 Contrary to the government and district court’s understanding of pre-conclusion voluntary departure, the means to fund such a departure is not a pre-requisite to apply for that form of relief. See Matter of Arguelles-Campos, 22 I. & N. Dec. 811, 817 (BIA 1999) (en banc); Compare 8 U.S.C. § 1229c(b)(1)(D); 8 C.F.R. § 1240.26(c)(1) with § 1229c(a)(1); § 1240.26(b)(1)(i).

2 judicial review that due process requires, and a collateral attack of the removal

order must be available. Mendoza-Lopez, 481 U.S. at 838-39. Those

constitutional principles led to Congress’s enactment of § 1326(d). United States

v. Palomar-Santiago, 141 S. Ct. 1615, 1619 (2021). Accordingly, we have

consistently held that if a noncitizen did not validly waive the right to appeal, the

noncitizen satisfies § 1326(d)(1)-(2) and may collaterally attack the removal order.

See Gonzalez-Villalobos, 724 F.3d at 1131 (discussing cases).

The Court’s decision in Palomar-Santiago, 141 S. Ct. 1615, did not change

that outcome. There, the Court made clear that it was narrowly addressing the

situation where a “removal order was premised on a conviction that was later

found not to be a removable offense.” Id. at 1619. The Court rejected our

precedent that “excused” a defendant from having to prove § 1326(d)(1) and (d)(2)

in that situation and held that courts “may not excuse a failure to exhaust” when

faced with “mandatory language” in a statutory exhaustion provision. Id. at 1620-

21 (citation omitted). As the Court explained, our circuit precedent under scrutiny

in Palomar-Santiago relied upon an “extrastatutory exception” to § 1326(d)(1) and

(d)(2). Id. at 1621. Santos-Santos’s invalid appeal waiver, on the other hand, is

directly tied to an established constitutional principle and § 1326(d)’s text. The

exhaustion provision itself is limited to remedies that “may have been available.”

§ 1326(d)(1) (emphasis added). 632 (2016), to argue that an administrative remedy is not “practically ‘available’

under § 1326(d)(1)” where an IJ erroneously informs a noncitizen that a conviction

renders them removable. Palomar-Santiago, 141 S. Ct. at 1621. The Court

rejected that argument, explaining that “[n]othing in Ross” suggests that the

“substantive complexity of an affirmative defense can alone render further review

of an adverse decision ‘unavailable.’” Id. But unlike the situation in Palomar-

Santiago, Santos-Santos need not rely on a novel argument because the Supreme

Court has already recognized that an invalid appeal waiver does, in fact, “render[]

direct review of the Immigration Judge’s determination unavailable” and demands

the availability of collateral review. Mendoza-Lopez, 481 U.S. at 841.

Indeed, there is no salient distinction between Santos-Santos’s case and

Mendoza-Lopez. Like Santos-Santos, the noncitizens had waived their right to

appeal to the BIA, but because the IJ had failed to advise them of their eligibility

for relief, those waivers were not “considered or intelligent.” Id. at 840. I do not

read Palomar-Santiago as having overruled the basic due process principles

recognized in Mendoza-Lopez. See Palomar-Santiago, 141 S. Ct. at 1619

(reiterating the Court’s holdings in Mendoza-Lopez). As I understand Palomar-

Santiago, it removed the extra-statutory gloss we had crafted onto § 1326(d) and

4 emphasized that a defendant must satisfy all three elements of § 1326(d) to prevail

on a collateral attack of a removal order. See id. at 1620-21.

In sum, a direct application of § 1326(d) and Mendoza-Lopez, not a

judicially created exception, shows that Santos-Santos satisfied the first two prongs

of that provision. Section 1326(d)(1) requires exhaustion of remedies “that may

have been available,” but an appeal to the BIA was not available to him. Mendoza-

Lopez, 481 U.S. at 841. 2 Santos-Santos was also deprived of judicial review. See

§ 1326(d)(2); Pallares-Galan, 359 F.3d at 1096 (“Effective deprivation of [a

noncitizen’s] administrative appeal serves to deprive him of the opportunity for

judicial review as well.” (citing Mendoza-Lopez, 481 U.S. at 840)).

2. Having satisfied the first two prongs of § 1326(d) and shown a violation

of his due process rights, the last hurdle Santos-Santos must overcome is prejudice.

See Arias-Ordonez, 597 F.3d at 976. The record indicates “an IJ could have

concluded that his potential claim for relief from deportation would be

‘plausible,’” Pallares-Galan, 359 F.3d at 1104, particularly given the modest form

of pre-conclusion voluntary departure relief Santos-Santos would have sought.

2 A noncitizen exhausts administrative remedies by appealing to the BIA. See, e.g., Palomar-Santiago, 141 S. Ct. at 1621 (describing exhaustion of administrative remedies as “appealing the immigration judge’s decision to the BIA”); Diaz- Jimenez v. Sessions, 902 F.3d 955, 959 (9th Cir. 2018) (“To satisfy the exhaustion requirement, Diaz needed to ‘put the BIA on notice’ in his appeal from the IJ’s removal order.” (citation omitted)).

5 Compare United States v. Arrieta, 224 F.3d 1076, 1080 (9th Cir. 2000) (finding

prejudice where the petitioner had to show “extreme hardship” for relief) with

Matter of Arguelles-Campos, 22 I. & N. Dec. 811, 817 (BIA 1999) (en banc)

(holding that pre-conclusion voluntary departure requires “much less” than post-

conclusion voluntary departure and does not require a showing of good moral

character). I cannot join the majority, however, because rather than deciding that

for ourselves, we should afford the district court the opportunity to decide the

question of prejudice in the first instance. See United States v. Melendez-Castro,

671 F.3d 950, 954-55 (9th Cir. 2012) (holding that Melendez-Castro was not

advised of his right to relief but remanding to the district court “for consideration

of prejudice in the first instance”); United States v. Guzman-Ibarez, 792 F.3d 1094,

1100 (9th Cir. 2015) (same); Pallares-Galan, 359 F.3d at 1104 (same); United

States v. Leon-Paz, 340 F.3d 1003, 1007 (9th Cir. 2003) (same).

I acknowledge that we may affirm the district court on any basis supported

by the record. United States v. Reyes-Bonilla, 671 F.3d 1036, 1042 (9th Cir.

2012). But we must foremost remain mindful that “we are a court of review, not

first view.’” Cutter v. Wilkinson, 544 U.S. 709, 719 n.7 (2005); see also Shirk v.

U.S. ex rel. Dep’t of Interior, 773 F.3d 999, 1007 (9th Cir. 2014). Because the

district court erroneously found no due process violation at all, it has never

considered Santos-Santos’s equities and whether they establish a plausible claim

6 for relief. The government has also never briefed whether Santos-Santos can show

prejudice, much less offered the authorities proffered by the majority. See Shirk,

773 F.3d at 1007 (“Where an argument has been ‘briefed only cursorily before this

Court and [was] not ruled on by the district court,’ it is normally inappropriate for

us to evaluate the argument in the first instance.” (alteration in original) (citation

omitted)); United States v. Valdez-Novoa, 780 F.3d 906, 916 (9th Cir. 2015)

(explaining that the prejudice analysis of § 1326(d)(3) includes comparing “the

authorities offered by the government” to the authorities cited by the defendant).

On this record, I am not prepared to conclude that the district court would have

found there was no plausible claim for relief and usurp that court’s function as the

factfinder. I respectfully dissent.

7