UNITED STATES of America, Plaintiff-Appellee, v. Jose Armando ZAVALA-ZAVALA, Defendant-Appellant, 522 F. App'x 375

MEMORANDUM José Zavala-Zavala appeals the district court’s denial of his 8 U.S.C. § 1326(

d) motion to dismiss the indictment, which charged him with being found in the United States after removal in violation of 8 U.S.C. § 1326(

a) and illegal entry with a prior illegal reentry in violation of 8 U.S.C. § 1325. We affirm. The immigration judge violated due process by not allowing Zavala-Zavala to apply for voluntary departure before denying relief. See United States v. Melendez-Castro, 671 F.3d 950, 954 (9th Cir.2012) (per curiam). However, Zavala-Zavala’s argument that he need not establish prejudice is without merit. See id. at 954-55.

Contrary to Zavala-Zavala’s assertion, the district court applied the correct prejudice test when it considered the favorable and unfavorable factors to determine whether it was plausible that an immigration judge would have granted Zavala-Zavala voluntary departure pursuant to 8 U.S.C. § 1229c(a). See id.; United States v. Pallares-Galan, 359 F.3d 1088, 1104 (9th Cir.2004). In light of Zavala-Zavala’s more than 25 previous voluntary returns to Mexico and the minimal positive equities, it was not plausible that an immigration judge would have granted Zavala-Zavala voluntary departure in 2006. AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.