NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         SEP 30 2020
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.    19-50145

                Plaintiff-Appellee,              D.C. No.
                                                 3:18-cr-03681-WQH-1
  v.

JUAN TINOCO-GARCIA,                              MEMORANDUM *

                Defendant-Appellant.

                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                      Argued and Submitted August 31, 2020
                              Pasadena, California

Before: SILER,** BERZON, and LEE, Circuit Judges.

               Memorandum joined by Judge SILER and Judge LEE;
                         Dissent by Judge BERZON



       After the defendant-appellant Juan Tinoco-Garcia was criminally charged

with illegal re-entry into the United States, he moved to collaterally attack his prior


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Eugene E. Siler, United States Circuit Judge for the
removal order for lack of due process. We review the district court’s denial of his

motion to dismiss de novo. See United States v. Ubaldo-Figueroa, 

,

1047 (9th Cir. 2004). We affirm because the Immigration Judge (“IJ”) sufficiently

advised Tinoco-Garcia about his apparent eligibility for relief and provided him

with an opportunity to consult with counsel, which he declined.1

      “A defendant charged with illegal reentry under 8 U.S.C. § 1326 has a Fifth

Amendment right to collaterally attack his removal order because the removal

order serves as a predicate element of his conviction.”

(citing

United States v. Mendoza-Lopez, 

, 837-38 (1987)). To sustain such a

collateral attack, “a defendant must, within constitutional limitations, demonstrate

(1) that he exhausted all administrative remedies available to him to appeal his

removal order, (2) that the underlying removal proceedings at which the order was

issued improperly deprived him of the opportunity for judicial review, and (3) that

the entry of the order was fundamentally unfair.”

(citing 8 U.S.C. §

1326(d)). “An underlying removal order is ‘fundamentally unfair’ if: ‘(1) [a

defendant’s] due process rights were violated by defects in his underlying


U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
1
  Tinoco-Garcia also challenges the validity of his notice to appear under 8 U.S.C.
§ 1229(a) and 8 C.F.R. §§ 1003.12-15. As Tinoco-Garcia recognizes, Karingithi v.
Whitaker, 

(9th Cir. 2019), and Aguilar Fermin v. Barr, 

(9th Cir. 2020), require that we reject the challenge, which Tinoco-Garcia
preserved for en banc or Supreme Court review.


                                          2
deportation proceeding, and (2) he suffered prejudice as a result of the

defects.’”

v. Zarate-Martinez, 

, 1197 (9th

Cir. 1998)). The exhaustion requirement “cannot bar collateral review of a

deportation proceeding when the waiver of right to an administrative appeal did

not comport with due process.”

v. Muro-Inclan, 

, 1183-84 (9th Cir. 2001)). Finally, “[t]he Due Process Clause of the

Fifth Amendment requires that an alien in immigration proceedings be ‘made

aware that he has a right to seek relief.’” United States v. Melendez-Castro, 

, 954 (9th Cir. 2012) (citing United States v. Arrieta, 

, 1079

(9th Cir. 2000)); see also 8 C.F.R. § 1240.11(a)(2).

      In his motion to dismiss the information, Tinoco-Garcia alleged that his

prior removal proceedings violated due process because the IJ failed sufficiently to

advise him about his apparent eligibility for relief and that he suffered prejudice as

a result. At the time of his prior removal hearing, Tinoco-Garcia was ineligible for

voluntary departure because he had pled nolo contendre to an aggravated felony.

See Cal. Penal Code § 288(a); 8 U.S.C. § 1229c(b)(1);

§ 1101(f)(8).

Tinoco-Garcia, however, argues that he may have become eligible for relief if he

was able to vacate his aggravated felony conviction, under Padilla v. Kentucky,

(2010), because his criminal defense attorney had provided




                                          3
objectively unreasonable advice about the immigration consequences of his plea,

but the IJ failed adequately to so advise him.

      Assuming without deciding that the IJ had a duty to advise Tinoco-Garcia

about his potential Padilla route to vacating his conviction in state court, we agree

with the district court that the IJ “properly advised [Tinoco-Garcia] of the potential

avenue for post-conviction relief and offered to set the hearing over to allow the

Defendant to seek counsel.” After Tinoco-Garcia explained the circumstances of

his initial plea to the IJ, the IJ recognized that Tinoco-Garcia may have a Padilla

claim. The IJ explained that “I understand what you’re telling me and you may

very well have a motion that you can bring in the California criminal court system

regarding your plea.” The IJ also offered that “I can set your hearing over another

couple of weeks, if you want to talk to an attorney about representing you … in

immigration court.”

      The IJ did not negate this advice by adding that “it’s very unlikely that

you’re going to have enough time, while you’re in custody, to challenge your

criminal court conviction.” This comment was a prediction as to the speed with

which another adjudicatory body would act, not a negation of the Padilla advice

given. It was therefore quite different from the comment in Melendez-Castro,

where the IJ negated the advice given about eligibility for voluntary departure by




                                          4
adding, definitively, that “even if you were to apply for voluntary departure I

wouldn’t grant it to 

(emphasis added).

      Additionally, the record shows that Tinoco-Garcia repeatedly stated that he

preferred a quick deportation as opposed to continuing to sit in detention, which he

would be required do while seeking a state court Padilla ruling and then an

alternative disposition of the state charges against him, whether by plea to revised

charges or trial. The IJ’s comment about timing was therefore responsive to

Tinoco-Garcia’s expressed concerns about remaining in custody.

      We therefore AFFIRM the district court’s denial of Tinoco-Garcia’s motion

to dismiss and judgment.




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                                                                       FILED
United States of America v. Juan Tinoco-Garcia, No. 19-50145            SEP 30 2020
                                                                    MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting:                                   U.S. COURT OF APPEALS



      I respectfully dissent. I would hold that the IJ’s advice about the possibility

of vacating the state conviction under Padilla v. Kentucky, 

(2010),

was critically incomplete. At the time she gave the advice, the IJ was misinformed

about the relationship between Tinoco-Garcia’s Padilla claim and his eligibility for

voluntary departure, and so gave materially misleading information.

      When the IJ briefly advised Tinoco-Garcia that he had a possible Padilla

ineffective assistance of counsel claim in state court, she did not explain how a

successful Padilla claim would allow Tinoco-Garcia to become eligible for certain

discretionary relief, such as voluntary departure. When the IJ advised

Tinoco-Garcia about his Padilla claim, the IJ by her own admission “wasn’t

thinking particularly clearly.” At the time, the IJ was under the incorrect

impression that Tinoco-Garcia was eligible for voluntary departure, regardless of

the outcome of a Padilla claim, because his conviction was for less than one year.

In fact, Tinoco-Garcia’s conviction for sexual abuse of a minor is always an

aggravated felony. See 8 U.S.C. § 1101(a)(43)(A). So the IJ did not explain that

absent a successful Padilla claim in state court, Tinoco-Garcia would not be

eligible for voluntary departure and would be barred for life from returning to the

United States absent a very-difficult-to-obtain additional waiver. That information
would have been central to Tinoco-Garcia’s decision whether to confer with a

lawyer or contest his deportation, as he stated repeatedly that he wanted to return to

Mexico quickly so he could work, earn money, hire a lawyer, and apply from

Mexico for adjustment of status.

      During the subsequent voluntary departure hearing, the IJ told

Tinoco-Garcia that “because you have an aggravated felony conviction, you are

not eligible for voluntary departure. I apologize if I suggested otherwise.”

(Emphasis added). But the IJ did not connect that correction to her earlier

discouraging comments about the possibility of voiding the state aggravated felony

conviction.

      Further, the IJ’s statement to Tinoco-Garcia that “it’s very unlikely that

you’re going to have enough time, while you’re in custody, to challenge your

criminal court conviction,” did, in my view, negate what advice she did offer. The

statement could have reasonably been understood as advising Tinoco-Garcia that

his Padilla claim would be futile because the IJ would not exercise her discretion

to grant the continuances necessary for Tinoco-Garcia to pursue his state court

claim. See generally Matter of L-A-B-R-, 27 I. & N. Dec. 405, 419 (2018) (“[A]n

immigration judge must assess whether good cause supports a continuance to

accommodate a collateral proceeding by considering primarily the likelihood that




                                          2
the collateral relief will be granted and will materially affect the outcome of the

removal proceedings.”)

      As a result of these errors, I would not conclude, as the majority does, that

the IJ sufficiently advised Tinoco-Garcia about his eligibility for relief and that

Tinoco-Garcia preferred a quick deportation to continuing in detention. Instead, I

would hold that Tinoco-Garcia’s prior removal proceedings violated due process

because he was not informed that failing to obtain Padilla relief would eliminate

his eligibility for voluntary departure and thereby severely affect his eventual

ability to return to the United States.

      Further, I would also conclude that Tinoco-Garcia suffered prejudice as a

result. There was a “reasonable possibility” that Tinoco-Garcia would have been

able to vacate his state conviction and become eligible for relief. See C.J.L.G. v.

Barr, 

, 627 (9th Cir. 2019) (en banc) (internal quotation omitted). In

the district court, Tinoco-Garcia’s uncontested expert witness filed a declaration

explaining that “[t]here are alternative factually appropriate California convictions

that would not have constituted aggravated felonies and would have permitted the

same sentence.” The expert also stated that Tinoco-Garcia’s criminal defense

attorney told her that he did not know what the term “aggravated felony” meant,

never mind advise Tinoco-Garcia about the immigration consequences of such a

conviction.



                                           3
      For the above reasons, I would reverse the judgment of the district court, and

so dissent.




                                         4