United States v. Gonzalez-Flores

To show an immigration order was fundamentally unfair under 8 U.S.C. §1326(d), an alien has the burden to show prejudice, which is decided by using a balancing test of the alien's positive and negative attributes.

Humberto Gonzalez-Flores entered the United States illegally in 1999. In 2004, Gonzalez-Flores was convicted of robbery in California, and had two prior misdemeanors. Gonzalez-Flores was set for removal, and after an Immigration Judge (“IJ”) explained why he was not eligible for status adjustment, cancellation, or removal, denied to grant voluntary departure. The IJ explained that voluntary departure was denied because Gonzalez-Flores had no positive attributes, such as family ties or fear of torture, and that his criminal history was a negative attribute. After removal in 2004, Gonzalez-Flores returned two more times illegally. After the third reentry and arrest, Gonzales-Flores moved to dismiss under 8 U.S.C. § 1326(d), arguing his 2004 removal was invalid. The district court denied the motion, and Gonzalez-Flores appealed. Under § 1326(d), an alien is required to show that (1) all administrative remedies were exhausted, (2) deportation proceedings deprived the alien the chance of judicial review, and (3) the order entered was fundamentally unfair. On appeal, the Ninth Circuit found that though the errors by the IJ established that Gonzalez-Flores was improperly denied judicial review, and relieved his burden of exhausting administrative remedies, Gonzalez-Flores still had the burden to prove prejudice, which he failed to do because his negative attributes of his criminal record far outweighed his positive attributes. Gonzalez-Flores showed no case law that resembled a situation similar to his where an alien who had no positive attributes and significant negative attributes was allowed to stay. The panel therefore concluded that Gonzalez-Flores failed to prove that his removal was fundamentally unfair. AFFIRMED.