United States v. Xochitl Cisneros-Rodriguez, 2015 U.S. App. LEXIS 22502

Background

Cisneros, a Mexican national brought to the U.S. as a child, pled guilty in 2009 to California narcotics offenses (aggravated felony) and was placed in ICE administrative removal; she signed forms waiving rights and was removed in May 2010.
At the May 20, 2010 administrative proceeding ICE Agent Linares allegedly told Cisneros an attorney "would not help" and did not provide a list of free legal services; proceedings lasted ~10–15 minutes.
Cisneros returned unlawfully in 2011, was charged under 8 U.S.C. § 1326 for illegal reentry, and moved to dismiss the indictment arguing her 2010 removal was fundamentally unfair due to a due process violation in obtaining an invalid waiver of counsel.
At a district evidentiary hearing testimony conflicted: Cisneros testified she was discouraged from hiring counsel and would have sought counsel; Linares had no specific recollection but testified about his ordinary practices; the district court denied dismissal and Cisneros was convicted.
On appeal the Ninth Circuit majority held Linares’s statement that "an attorney would not help" invalidated Cisneros’s waiver of counsel and prejudiced her because she was facially eligible for a U‑visa and it was plausible she would have sought and obtained one had she had counsel; court reversed and ordered dismissal and vacatur of conviction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ICE agent’s advice produced an invalid waiver of counsel (due process)	Linares told her a lawyer "would not help," so waiver was not knowing and voluntary	Linares properly advised and/or followed procedures; any statement was accurate	Court: Waiver invalid — agent’s statement misled and violated due process
Whether Cisneros was prejudiced (plausible relief)	With counsel she plausibly would have applied for and obtained a U‑visa; she was facially eligible	Statutory bar: administrative proceedings under §1228(b)(5) precluded discretionary relief; even without bar, success was implausible	Court: Prejudice shown — plausible she could have applied for and obtained a U‑visa absent the violation
Effect of §1228(b)(5) (statutory bar to discretionary relief during administrative proceedings)	§1228(b)(5) does not absolutely foreclose collateral attack where plaintiff identifies a plausible form of relief and shows plausibility of obtaining it	§1228(b)(5) bars discretionary relief while in administrative proceedings, so Cisneros couldn’t have obtained a U‑visa	Court: §1228(b)(5) not an absolute bar to collateral‑attack prejudice; transfer or stay was plausibly available and counsel could have averted removal
Remedy for invalid removal order	Dismiss §1326 indictment as removal order was fundamentally unfair	Maintain conviction because no prejudice or judicial deference to district court credibility findings	Court: Reverse and remand with directions to dismiss indictment and vacate conviction

Key Cases Cited

United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir.) (collateral attack right on removal order under §1326 and standard for exhaustion/fundamental unfairness)
United States v. Mendoza-Lopez, 481 U.S. 828 (U.S. 1987) (Fifth Amendment right to challenge deportation order that is a predicate to criminal conviction)
United States v. Reyes-Bonilla, 671 F.3d 1036 (9th Cir.) (prejudice analysis re: plausibility of CAT relief and collateral attack standards)
United States v. Ramos, 623 F.3d 672 (9th Cir.) (government bears burden to prove valid waiver; waiver must be knowing and voluntary)
United States v. Gomez, 757 F.3d 885 (9th Cir.) (presumption against waiver; due process in collateral attacks)
United States v. Barajas-Alvarado, 655 F.3d 1077 (9th Cir.) (plausibility standard requires more than possibility)
United States v. Calderon-Segura, 512 F.3d 1104 (9th Cir.) (aggravated-felon administrative removal and limits on discretionary relief)
United States v. Garcia-Martinez, 228 F.3d 956 (9th Cir.) (administrative removal for aggravated felons and foregone relief)
United States v. Raya-Vaca, 771 F.3d 1195 (9th Cir.) (plausibility vs. probability in collateral‑attack prejudice inquiry)
United States v. Corrales-Beltran, 192 F.3d 1311 (9th Cir.) (requiring individualized showing — general statistics insufficient to prove plausibility)