
    UNITED STATES of America, Plaintiff-Appellee, v. Jose Armando ZAVALA-ZAVALA, Defendant-Appellant.
    No. 12-50298.
    United States Court of Appeals, Ninth Circuit.
    Submitted June 4, 2013.
    
    Filed June 6, 2013.
    Joseph Orabona, Assistant U.S., Bruce R. Castetter, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
    Alysia Desiree Franklin, James Fife, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
    Before: THOMAS, SILVERMAN, and FISHER, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   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.
     