United States v. Gabriela Cordova-Soto
804 F.3d 714
5th Cir.2015Background
- Gabriela Cordova-Soto, a Mexican national and lawful permanent resident since 1991, pleaded guilty (2005) to felony methamphetamine possession; ICE served a Stipulated Request for Issuance of Final Order of Removal which she signed while unrepresented.
- The stipulation form stated she was “fully advised of [her] rights” and that she waived the right to counsel, a removal hearing, and to seek relief; an ICE agent later certified he had explained the form.
- An Immigration Judge accepted the stipulation and ordered removal to Mexico in November 2005; Cordova reentered the U.S. shortly thereafter and was later removed again in 2010; subsequent challenges to the removal orders were time-barred.
- Cordova was indicted for illegal reentry under 8 U.S.C. § 1326 and moved to dismiss, arguing the 2005 removal order was invalid because (1) the IJ failed to expressly find her waiver was voluntary, knowing, and intelligent (8 C.F.R. § 1003.25(b)), and (2) an ICE agent gave misinformation that induced the waiver.
- The district court denied the motion, finding the record supported an implicit finding of voluntariness (Cordova is fluent in English, the form was plain, and an ICE agent explained rights); Cordova reserved the right to appeal that denial in her plea agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ’s failure to expressly find waiver was voluntary under 8 C.F.R. § 1003.25(b) rendered removal fundamentally unfair | Cordova: absence of an express voluntariness finding violated due process and made proceedings fundamentally unfair | Government: record (signed plain-language stipulation, agent certification, English fluency) supports an implicit voluntariness finding; due process satisfied | Held: No due process violation; implicit finding supported; failure to follow regulation not per se denial of due process |
| Whether ICE agent’s alleged misinformation about eligibility for discretionary relief rendered waiver involuntary | Cordova: agent misadvised that her drug conviction was an aggravated felony, inducing waiver and foreclosing relief | Government: advice was correct under then-prevailing precedent; eligibility for discretionary relief is not a protected due process right; no prejudice shown | Held: Reviewed for plain error; no clear or obvious error and no prejudice; claim fails |
| Whether Cordova exhausted administrative remedies or was deprived of judicial review under § 1326(d) | Cordova: waiver invalid so exhaustion excused; moved to reopen years later | Government: waiver valid; motion to reopen untimely and did not exhaust remedies | Held: Exhaustion and deprivation prongs fail because waiver not shown invalid; motion to reopen was untimely |
| Whether § 1326(d) three-prong test met to permit collateral attack on removal order | Cordova: asserted fundamental unfairness, lack of judicial review, and prejudice | Government: factual record and precedent defeat each prong | Held: Cordova failed to prove fundamental unfairness or prejudice; therefore § 1326(d) relief denied |
Key Cases Cited
- United States v. Mendoza-Lopez, 481 U.S. 828 (1987) (due process may require collateral review of deportation orders used to prove illegal-reentry offenses)
- United States v. Benitez-Villafuerte, 186 F.3d 651 (5th Cir. 1999) (waiver of hearing can be valid absent evidence it was unknowing; notice and opportunity to be heard suffice)
- United States v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002) (discretionary relief eligibility is not a due-process-protected right; failure to advise does not necessarily render proceedings fundamentally unfair)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (interpreting aggravated-felony immigration consequences of certain drug offenses)
- United States v. Villanueva-Diaz, 634 F.3d 844 (5th Cir. 2011) (standard of review for district court denial of motion to dismiss indictment)
- Puckett v. United States, 556 U.S. 129 (2009) (plain-error review framework)
- United States v. Gutierrez, 343 F.3d 415 (5th Cir. 2003) (district court’s decision declining evidentiary hearing reviewed for abuse of discretion)