NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 13 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50345

Plaintiff-Appellee, D.C. No. 2:18-cr-00653-GW-1

v.

MEMORANDUM*

ERNESTO CEJA MEDINA, AKA Ernesto Ceja,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted January 12, 2023 Pasadena, California

Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Ernesto Ceja Medina was indicted on one count of illegal reentry after

removal in violation of 8 U.S.C. § 1326. He appeals the district court’s denial of

his motion to dismiss the indictment, claiming that his underlying order of removal

was invalid because the immigration judge (“IJ”) denied him due process at his

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

We review the district court’s denial of the motion to dismiss de novo.

United States v. Ramos, 623 F.3d 672, 679 (9th Cir. 2010). 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).

The defendant must demonstrate, among other things, that “the entry of the order

was fundamentally unfair.” 8 U.S.C. § 1326(d)(3).1 The entry of a removal order

is “fundamentally unfair” if the defendant suffers prejudice resulting from a due

process violation. United States v. Gonzalez-Flores, 804 F.3d 920, 927–28 (9th

Cir. 2015). To establish prejudice, a defendant “must make a ‘plausible showing’

that an IJ . . . would exercise discretion in the” defendant’s favor, but for the

1 The government contends, and the district court held, that even if Medina could show fundamental unfairness and a due process violation, he would still not be entitled to relief because he failed to show that he exhausted available administrative remedies, § 1326(d)(1), and that he was deprived of judicial review, § 1326(d)(2). Because we reject Medina’s due process claim, we do not reach either of those other issues.

2 alleged due process violation. Id. at 927 (citing United States v. Rojas-Pedroza,

716 F.3d 1253, 1263–64 (9th Cir. 2013)).

Medina contends that he suffered prejudice because in the absence of the

alleged due process violations, he could have received voluntary departure relief.

We “employ a two-step process” to evaluate this argument. Id. First, “we consider

the positive and negative factors an IJ would consider relevant to an exercise of

discretion.” Id. We can also consider positive equities that were not in the record

before the IJ. See id. at 928. 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

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

permanent resident.” Rojas-Pedroza, 716 F.3d at 1265 (citations omitted).

Medina’s positive equities are minimal. At the time his removal order was

entered, Medina did not have close family ties to the United States; his parents and

only child resided in Mexico, and he was single. Moreover, he only lived in the

United States for three years before sustaining his misdemeanor convictions. And

an IJ could conclude that one of the two positive factors that Medina argues on

appeal—his history of employment—carries less weight than normal here, as

Medina’s employment was associated with his grand theft conviction. Negative

equities include Medina’s DUI and grand theft convictions, and that he committed

3 the grand theft less than six months after his DUI conviction, while serving his 36-

month term of probation for the DUI conviction.

Second, we determine whether, in light of these equities, Medina has

“carried [his] burden of proving ‘it was plausible (not merely conceivable) that the

IJ would have exercised his discretion in [Medina’s] favor.’” Gonzalez-Flores,

804 F.3d at 927. For this inquiry, “we focus on whether aliens with similar

circumstances [have] received relief.” Rojas-Pedroza, 716 F.3d at 1263. One case

“that is arguably on point . . . is plainly insufficient.” United States v. Valdez-

Novoa, 780 F.3d 906, 920–21 (9th Cir. 2015).

Medina cites several cases, but none featured similar circumstances. In

United States v. Frias-Flores, 425 F. App’x 640 (9th Cir. 2011), the petitioner had

significant positive equities—such as a twenty-five-year residence in this country

and close family ties to the United States through his wife, children, siblings, and

parents—that are not present here. Id. at 643. In Melendez-Castro, the panel did

not make a prejudice determination because the district court had not fully

analyzed the issue, but nevertheless noted positive equities that are not present in

Medina’s case. See 671 F.3d at 952, 955 (noting that petitioner’s mother, sister,

and daughter resided in this country). In United States v. Raya-Vaca, 771 F.3d

1195 (9th Cir. 2014), abrogated by Dep’t of Homeland Sec. v. Thuraissigiam, 140

S. Ct. 1959 (2020), the panel was not looking at factors governing voluntary

4 departures. See id. at 1206–07. United States v. Monje-Campos, No. EDCR 18-

00334 JGB, 2019 WL 7576679 (C.D. Cal. June 10, 2019), is not analogous

because the district court’s prejudice finding was based on the IJ’s failure to

consider relevant equities and consideration of the legally irrelevant factor of

defendant’s ability to pay. See id. at *4–6. Instead, Medina’s case is similar to In

re Martinez-Hernandez, 2011 WL 4446883 (BIA Sept. 6, 2011), where the Board

of Immigration Appeals affirmed a denial of voluntary departure noting that the

defendant did not have a long residence in the United States or close family ties to

this country, even though he had no criminal history. See id. at *1.

In sum, even assuming (without deciding) that there was a due process

violation at Medina’s removal hearing, Medina has not made a “‘plausible

showing’ that an IJ presented with all of the facts would exercise discretion in [his]

favor.” Gonzalez-Flores, 804 F.3d at 927. His positive equities—including those

not presented to the IJ—were outweighed by the countervailing negative ones.

Moreover, he has not pointed to one case where an “alien[] [with] similar

circumstances received relief.” Rojas-Pedroza, 716 F.3d at 1263. Medina has thus

failed to carry his burden on the prejudice element of his collateral challenge.

AFFIRMED.

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