IKUTA, Circuit Judge:
Humberto Gonzalez-Flores appeals from the district court's denial of his motion to dismiss an information charging him under 8 U.S.C. § 1326 with being an alien found in the United States after he was removed in 2004. We affirm. Gonzalez-Flores may not bring a collateral attack against the removal order underlying his conviction because any error at the 2004 removal proceedings was not prejudicial. See 8 U.S.C. § 1326(d)(3); United States v. Vidal-Mendoza, 705 F.3d 1012, 1015-16 (9th Cir.2013).
Gonzalez-Flores, a citizen of Mexico, entered the United States illegally in 1999. He was 15 years old at the time of entry. He began attending high school, but dropped out after the eleventh grade to start working. He worked for several years at Los Angeles International Airport loading food onto passenger planes. On November 4, 2004, he was convicted of robbery in violation of California Penal Code § 211
In November 2004, after his robbery conviction, Gonzalez-Flores was placed in removal proceedings. He appeared pro se at a hearing before an immigration judge (IJ) on December 29, 2004. During the hearing, the IJ asked Gonzalez-Flores a series of questions to draw out information relating to his eligibility for immigration relief. The IJ first asked whether Gonzalez-Flores was married or had children, and whether his parents were United States citizens or lawful permanent residents. Gonzalez-Flores answered "no" to these questions. The IJ then asked whether Gonzalez-Flores's parents were born, lived in, and were citizens of Mexico. Gonzalez-Flores answered "yes." In response to further questions, Gonzalez-Flores stated that no one had ever filed a petition on his behalf so he could immigrate to the United States, and that he was not a permanent resident of the United States. Gonzalez-Flores also agreed with the IJ's statement that Gonzalez-Flores came into the United States for the first time in 1999. The IJ then confirmed that Gonzalez-Flores had been convicted of robbery and sentenced to 210 days in jail.
In response to further questions, Gonzalez-Flores stated he understood and accepted the IJ's decision, and did not wish to appeal it. Accordingly, the IJ ordered him removed.
Following his removal in 2004, Gonzalez-Flores illegally reentered the United States in 2008. The government reinstated his removal order, and removed him again on February 29, 2008. In April 2013, he made a third illegal entry and was arrested near the border between Mexico and the United States. The government charged him with being an alien found in the United States after removal, in violation of 8 U.S.C. § 1326. He moved to dismiss the information under § 1326(d), claiming his 2004 removal order was invalid because the IJ had violated his due process rights by failing to inform him that he might be eligible for voluntary departure. The district court denied the motion on the ground that no due process violation occurred, and even if there had been such a violation, Gonzalez-Flores suffered no prejudice. Gonzalez-Flores later pleaded guilty to the § 1326 violation in a plea agreement. The plea agreement included an appeal waiver, but Gonzalez-Flores retained the right to bring this appeal of the district court's denial of his motion to dismiss the information. We have jurisdiction over his appeal under 28 U.S.C. § 1291.
We review de novo a district court's denial of an alien's collateral challenge to a prior deportation order under 8 U.S.C. § 1326(d). United States v. Gonzalez-Valerio, 342 F.3d 1051, 1053 (9th Cir. 2003).
As originally enacted, § 1326 did not permit collateral attacks on a prior order of deportation. United States v. Mendoza-Lopez, 481 U.S. 828, 837, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). In response to the Supreme Court's determination that imposition of criminal penalties based on a
In applying § 1326(d), our cases generally focus on a single type of defect in a deportation hearing: the IJ's failure to comply with 8 C.F.R. § 1240.11(a)(2). See, e.g., Vidal-Mendoza, 705 F.3d at 1015. Under § 1240.11(a)(2), if an alien seeking lawful permanent resident status applies to the IJ for a waiver of a ground of inadmissibility, the IJ "shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing." 8 C.F.R. § 1240.11(a)(2).
For purposes of § 1326(d), the IJ's non-compliance with § 1240.11(a)(2) relieves the alien of the burden of proving exhaustion of administrative remedies under § 1326(d)(1) because "we deem the alien's waiver of the right to an administrative
We employ a two-step process for determining whether an alien claiming apparent eligibility for voluntary departure has made this showing. Rojas-Pedroza, 716 F.3d at 1263. First, we consider the positive and negative factors an IJ would consider relevant to an exercise of discretion. See id. at 1264-65. Positive factors include "long residence, close family ties to the United States, and humanitarian needs." Id. at 1265. Negative factors include "the nature and underlying circumstances of the deportation ground at issue; additional violations of the immigration laws; 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." Id. (quoting Matter of Arguelles-Campos, 22 I. & N. Dec. 811, 817 (BIA 1999)).
Second, we determine whether, in light of these factors and the circumstances of the alien's case, the alien carried the burden of proving "it was plausible (not merely conceivable) that the IJ would have exercised his discretion in the alien's favor." Id. at 1263 (internal quotation marks omitted). "[E]stablishing `plausibility' requires more than establishing a mere `possibility.'" United States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir. 2011). In assessing whether the alien carried this burden, we "focus on whether aliens with similar circumstances received relief." Rojas-Pedroza, 716 F.3d at 1263. "[T]he existence of a single case that is arguably on point means only that it is `possible' or `conceivable' that a similarly situated alien would be afforded voluntary departure. That is plainly insufficient...." Valdez-Novoa, 780 F.3d at 920-21.
We now turn to the facts of this case, and consider whether Gonzalez-Flores can bring a collateral attack on his prior deportation order under § 1326(d). Gonzalez-Flores claims that he satisfies the three requirements for bringing such a collateral attack because the IJ failed to inform him of his "apparent eligibility to apply for" voluntary departure. See 8 C.F.R. § 1240.11(a)(2).
As a threshold matter, the record makes clear (and Gonzalez-Flores does not dispute) that the IJ in this case did raise the issue of Gonzalez-Flores's eligibility for voluntary departure. Accordingly, Gonzalez-Flores relies on Melendez-Castro, and argues that the IJ told him about the availability of voluntary departure only to tell him he did not qualify "almost in the same breath." See 671 F.3d at 954.
We disagree. In Melendez-Castro, the IJ stated:
671 F.3d at 953 (emphasis added). Melendez-Castro explained that this statement failed to meet the requirements of 8 C.F.R. § 1240.11(a)(2) because the IJ stated that the alien was eligible for relief, but "almost in the same breath" stated the alien would not get the relief if he applied for it, and "[a] reasonable person in Melendez-Castro's position would have been discouraged from applying for voluntary departure to an extent that it is as if he was told that he did not qualify for this relief." Id. at 954 (emphasis added). We concluded that such a complete and immediate negation violated the alien's procedural right to be informed of his apparent eligibility to apply for relief under § 1240.11(a)(2). Id.
Unlike in Melendez-Castro, the IJ here did not state an unqualified rule that an alien in Gonzalez-Flores's situation could not qualify for relief. See id. Nor did the IJ raise and then immediately negate "almost in the same breath" the possibility of voluntary departure. See id. Rather, the IJ raised the availability of such relief and explored it. In effect, the IJ deemed Gonzalez-Flores to have applied for voluntary departure, weighed Gonzalez-Flores's equities, and reached a conclusion on his application.
But even if the IJ's detailed colloquy with Gonzalez-Flores fell short of the requirements of § 1240.11(a)(2), Gonzalez-Flores suffered no prejudice from any such error, and therefore cannot demonstrate that the entry of the removal order was "fundamentally unfair" for purposes of § 1326(d)(3). See Rojas-Pedroza, 716 F.3d at 1266-67. Applying our two-part test for prejudice, we first consider the positive and negative factors that are relevant to the IJ's exercise of discretion. Here, Gonzalez-Flores's positive equities are minimal: he lived in the United States for five years, he attended high school from age 15 through the eleventh grade, and he held a job for a few years from when he left high school until he committed a robbery. Although the IJ was not informed of Gonzalez-Flores's high school attendance and work history, these additional facts do not contradict the IJ's conclusion that Gonzalez-Flores's equities were "very few except for those normally associated with any residence of any duration." Because none of Gonzalez-Flores's family members were United States citizens or lawful permanent residents, and because he resided in the United States for only five years, he lacked close family ties to the United States or a long residence here, the most typical favorable equities deemed important in other cases. See Arguelles-Campos, 22 I. & N. Dec. at 817. On the other hand, his negative equities
Second, we consider whether Gonzalez-Flores has carried his burden of showing that "aliens with similar circumstances received relief." See Rojas-Pedroza, 716 F.3d at 1263. The Ninth Circuit cases identified by Gonzalez-Flores involve aliens who had far more significant positive equities, even though they also had more significant negative equities. Gonzalez-Flores has pointed to no case in which an alien with so few positive equities has been granted relief. In United States v. Alcazar-Bustos, we held that it was plausible a defendant would be granted voluntary departure where the defendant had lived in the United States since he was two months old and had a United States citizen wife and child, even though the defendant's criminal history included firearm possession convictions, and showed association with gang members and prior drug use. 382 Fed.Appx. 568, 569-71 (9th Cir. 2010). Likewise, in United States v. Vasallo-Martinez, we held it was plausible a defendant would be granted voluntary departure where the defendant resided in the United States for 21 years, had a United States citizen wife and child, and owned a business, because these positive equities outweighed the defendant's four convictions for driving under the influence and three unrelated misdemeanors. 360 Fed. Appx. 731, 732-33 (9th Cir.2009).
Gonzalez-Flores has also identified opinions in which the BIA held that an alien was entitled to voluntary departure, but each of those cases similarly involved aliens with significant positive equities. In Matter of Gonzales-Figeroa, the BIA upheld a grant of voluntary departure where the alien had lived in the United States for fifteen years, had a pending visa petition filed by his lawful permanent resident mother, and his sister and two nieces were United States citizens. 2006 WL 729784, at *1-2 (BIA Feb. 10, 2006). Although the alien in that case had four assault convictions and a conviction for resisting arrest, the BIA credited the alien's testimony that the convictions were the result of a drinking problem, and that he no longer drank after successfully completing a rehabilitation program. Id. at *1. Similarly, in Matter of Hernandez-Garcia, the BIA reversed a denial of voluntary departure where the alien had a United States citizen wife and child, even though the alien had impersonated a United States citizen in order to procure a passport. 2012 WL 1705671, at *1 (BIA Apr. 11, 2012); see also Matter of Pineda-Castellanos, 2005 WL 3833024, at *1-2 (BIA Nov. 16, 2005) (affirming an IJ's grant of voluntary departure to an alien with a lawful permanent resident wife and three children, but indicating that such relief was barely warranted given the negative equities of six criminal convictions). By contrast, the BIA affirmed a denial of voluntary departure where the alien was arrested twice for driving on a suspended license and once for a DUI, despite the alien's family ties to the United States. Matter of Posadas-Posadas, 2012 WL 371659, at *1-2 (BIA Jan. 18, 2012).
As these cases illustrate, Gonzalez-Flores has failed to carry his burden of showing that aliens with his scant positive equities received relief. See Rojas-Pedroza, 716 F.3d at 1263. In fact, Gonzalez-Flores has failed to identify even a single case on point, which in any event would be insufficient on its own. See Valdez-Novoa, 780 F.3d at 920-21.
Because Gonzalez-Flores has failed to carry his burden of showing a grant of relief was "plausible," he has not