UNITED STATES of America, Plaintiff-Appellee, v. Faustino GOMEZ, Defendant-Appellant.
No. 11-30262.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 4, 2013. Filed April 24, 2014.
885
AFFIRMED.
WATFORD, Circuit Judge, concurring:
I agree that Hernandez-Arias was properly removed in 2010 as “[a]n alien present in the United States without being admitted or paroled.”
I join the court‘s opinion with respect to all other issues.
Rebecca L. Pennell (argued), Federal Defenders of Eastern Washington & Idaho, Yakima, WA, for Defendant-Appellant.
Alexander C. Ekstrom (argued), United States Attorney‘s Office for the Eastern District of Washington, Yakima, WA, for Plaintiff-Appellee.
Before: RAYMOND C. FISHER, RONALD M. GOULD, and RICHARD A. PAEZ, Circuit Judges.
PAEZ, Circuit Judge:
The opinion filed on October 7, 2013 and reported at 732 F.3d 971 is withdrawn. The opinion shall not be cited as precedent by or to any court of the Ninth Circuit. It is replaced by the new opinion filed concurrently with this order.
With the withdrawal of the prior opinion, the Appellant‘s Petition for Panel Rehearing and Rehearing En Banc is denied as moot. A petition for rehearing may be filed in response to the new opinion as provided by Federal Rules of Appellate Procedure 35 and 40.
OPINION
PAEZ, Circuit Judge:
Faustino Gomez appeals the district court‘s denial of his motion to dismiss the indictment charging him with illegal reentry under
Gomez also challenges the district court‘s imposition of a sixteen-level sentencing enhancement. He argues that his 2004 conviction for sexual conduct with a minor under Arizona Revised Statute section 13-1405 does not constitute a “crime of violence” as defined by United States Sentencing Guidelines Manual (“U.S.S.G.“)
I. BACKGROUND
A.
In January 2004, Gomez was indicted on three counts of violating Arizona Revised Statute section 13-1405 for sexual conduct with a minor who was under the age of fifteen. Count one charged Gomez with
On January 17, 2006, the immigration authorities served Gomez, who was in Immigration and Customs Enforcement‘s (“ICE“) custody, with a Notice to Appear (“NTA“). Gomez signed and returned a “request for prompt hearing.” The NTA included the allegation that he had been convicted of the
B.
On December 23, 2010, Gomez was arrested for driving under the influence of alcohol in Washington state. A day later, an ICE agent located Gomez in the Franklin County Jail in Washington. Gomez was indicted on January 11, 2011, for illegal reentry in violation of
The probation officer prepared a pre-sentence report (“PSR“) and recommended a total offense level of twenty-two. The total offense level included a sixteen-level enhancement based on the probation officer‘s determination that Gomez had been previously deported after being convicted of a “crime of violence” as defined by
On September 8, 2011, the district court conducted a hearing on objections to the PSR. Gomez‘s primary objection was to the sixteen-level sentencing enhancement for his 2004
On September 15, 2011, the district court conducted a sentencing hearing. The district court acknowledged the PSR‘s recommended Guidelines sentencing range of fifty-one to sixty-three months, and found that Gomez‘s
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review a final judgment of the district court pursuant to
“We review de novo the district court‘s interpretation of the Sentencing Guidelines,” United States v. Rodriguez-Ocampo, 664 F.3d 1275, 1277 (9th Cir. 2011) (quoting United States v. Berger, 587 F.3d 1038, 1041 (9th Cir.2009)) (internal
III. DISCUSSION
A. Conviction
When an alien defendant is prosecuted for illegal reentry under
- [he] exhausted any administrative remedies that may have been available to seek relief against the order;
- the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
- the entry of the order was fundamentally unfair.
A defendant can establish the first two prongs of
[W]here a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding. This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.
United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987) (footnote omitted); see also United States v. Lopez-Vasquez, 1 F.3d 751, 753 (9th Cir.1993).
A defendant can also satisfy the first two prongs of
Once a due process or a qualifying regulatory violation has been established, we evaluate the third prong of
Here we conclude that Gomez‘s 2006 deportation was invalid for two independent reasons. First, Gomez was denied his right to appeal his removal order in violation of due process because immigration officials failed to obtain a knowing waiver of that right. Second, the IJ who ordered Gomez removed violated
1. Violations
a. Invalid Waiver
Obtaining an invalid waiver of the right to appeal a deportation order violates due process. Lopez-Vasquez, 1 F.3d at 753-54 (“Although a deportee may waive his right to judicial review of his deportation order, that waiver must be considered and intelligent. Otherwise, the deportee is deprived of judicial review in violation of due process.” (internal quotation marks omitted) (quoting Mendoza-Lopez, 481 U.S. at 837-38)). Thus, although “an alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order,” United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000), “[a] valid waiver of the right to appeal ‘must be both considered and intelligent,‘” Ramos, 623 F.3d at 680 (quoting Arrieta, 224 F.3d at 1079) (additional internal quotation marks omitted).
The first two prongs of
At the time of his removal proceeding, Gomez signed a Stipulated Removal form, printed in English and Spanish, waiving his right to appeal the deportation order. Gomez argues that because he contests the validity of his waiver, the government‘s reliance on that form—without more—is insufficient to prove by “clear and convincing evidence” that his waiver was valid. Guided by Ramos and Reyes-Bonilla, we agree.
The parties begin by debating who bears the burden of proving the validity of Gomez‘s waiver. Under the same circumstances as those in this case, we have said unmistakably that “[t]he government bears the burden of proving valid waiver in a collateral attack of the underlying removal proceedings.” Ramos, 623 F.3d at 680 (citing Lopez-Vasquez, 1 F.3d at 754-54); see also Reyes-Bonilla, 671 F.3d at 1043. The government must prove a valid waiver “by clear and convincing evidence.” Reyes-Bonilla, 671 F.3d at 1043 (citing United States v. Pallares-Galan, 359 F.3d 1088, 1097 (9th Cir.2004)).
We find unavailing the government‘s argument that United States v. Medina, 236 F.3d 1028, 1030 (9th Cir.2001), is to the contrary. In Medina, the defendant argued that the government could not prove that he had in fact been deported without a tape recording of the deportation proceeding. Id. We noted that “the lawfulness of the prior deportation is not an element of the offense under
As Ramos emphasized, this court should “‘indulge every reasonable presumption against waiver,‘” and should “‘not presume acquiescence in the loss of fundamental rights.‘” 623 F.3d at 680 (quoting Lopez-Vasquez, 1 F.3d at 754); see also Reyes-Bonilla, 671 F.3d at 1044. We carefully abide by this principle, especially where an uncounseled individual purportedly waived his right to appeal.
Where an alien defendant (1) was represented by counsel at his deportation proceeding and (2) did not allege facts undermining the validity of his waiver, we held that the government met its initial burden of proving a valid waiver by introducing an official immigration record. United States v. Galicia-Gonzalez, 997 F.2d 602, 603-04 (9th Cir.1993). We stated that “where the government introduces official records which on their face show a valid waiver of rights in connection with a deportation proceeding, the burden shifts to the defendant to come forward with evidence tending to prove the waiver was invalid.” Id. at 604. There, Galicia-Gonzalez‘s counsel signed a waiver of rights form “along with a declaration that she fully explained the contents of the agreement to him and that he entered it with full knowledge.” Id. at 603. And Galicia-Gonzalez did “not even allege[] there was anything wrong with his deportation, i.e., that his rights were improperly explained or that he was coerced into waiving them. The government‘s prima facie showing thus stands unchallenged and this satisfies the government‘s burden of showing a valid deportation for purposes of section 1326.” Id. at 604.
Galicia-Gonzalez is not controlling here for two independent reasons: (1) Gomez was not represented by counsel at his re-
The circumstances underlying the stipulated deportation in Ramos are strikingly similar to the circumstances here. Like Ramos, Gomez was unrepresented and, like Ramos, was deported pursuant to a stipulated removal proceeding at the Eloy, Arizona detention facility. See Ramos, 623 F.3d at 677. Ramos signed the same stipulation as Gomez. The preprinted stipulation form contains both English and Spanish statements that waive the alien‘s rights to counsel, ¶ 4, to a hearing before an IJ, ¶ 5, to any form of relief (including voluntary departure), ¶ 8, and to appeal, ¶ 13. In Ramos, we described the process for stipulated removal proceedings at Eloy:
After detainees are selected for participation in the stipulated removal program, deportation officers typically prepare an NTA and a Stipulated Removal form for each individual. Deportation officers then gather detainees selected for the program for a group presentation. There, an immigration enforcement agent explains in Spanish that a detainee has two options: first, to accept stipulated removal, or second, to appear before an IJ, where the detainee may ask to remain legally in the United States or seek voluntary departure. The agent also advises the group that under the stipulated removal program, a detainee can be removed that very day; whereas it could take anywhere from two to three weeks or longer to appear before an IJ if the detainee chooses not to sign the form. The agent then reads the text of the Stipulated Removal form aloud in Spanish, and concludes the presentation. Next, DHS deportation officers meet individually with each detainee to determine whether he or she wants to sign the Stipulated Removal form. Deportation officers do not review the detainee‘s A-file at any time before or during the individual meeting. No transcriber, interpreter, or attorney is present during the detainee‘s individual meeting with the deportation officer.
Id. at 678. This description is consistent with the record in this case, in particular Gomez‘s sworn declaration.
In Ramos, we described the testimony of the immigration officer who met individually with Ramos after the en masse reading, and we noted her limited Spanish language skills. 623 F.3d at 678-79. We concluded that “Ramos‘s waiver of his
We are not persuaded by the government‘s argument that Ramos relied on the incompetence of the immigration officer‘s individual translation. This argument improperly shifts the burden to the alien defendant to prove an incompetent explanation of the alien‘s rights; however, the burden to prove a competent explanation, and thus valid waiver, rests with the government. “We cannot conclude that waiver of rights, including the right to appeal, was ‘considered or intelligent’ without evidence that a detainee was ‘able to understand the questions posed to him’ when put to the choice of foregoing all rights or remaining in detention until he could appear before an IJ.” Ramos, 623 F.3d at 681 (emphasis added) (citing Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir.2000)). The fact that Ramos signed a stipulation indicating his understanding and waiver, and that the IJ found his waiver to be “voluntary, knowing, and intelligent,” id. at 679, was insufficient to meet the government‘s burden of proof; and the government offers nothing more here. See also Reyes-Bonilla, 671 F.3d at 1044-45 (concluding that the government failed to meet its burden of proving a valid waiver where the evidence was “unclear” as to whether the immigration officer explained to Reyes “in a language he could understand” his right to appeal and there was “no evidence as to the extent of the explanation given or [the immigration officer‘s] ability to communicate in Spanish“).
Thus, we see no reason to distinguish Ramos. If anything, there is more evidence here that Gomez had difficulty understanding the stipulated removal proceeding. Gomez stated in his declaration that he filed in the district court that he has difficulty reading Spanish, that he did not understand the stipulated proceeding, and that he received the same sort of en masse reading of the stipulation as Ramos. Gomez also stated that the immigration officer did not review the Stipulated Removal form with him during his individual meeting with the officer. The government has presented no evidence—other than the signed form—that Gomez was provided with a competent translation when he signed it. As we held in Ramos, due process requires that an alien be provided an individual explanation that is competently translated “when he sign[s] the form” above and beyond an en masse explanation. 623 F.3d at 680.
Moreover, shifting the burden to Gomez to prove an incompetent translation would skew the government‘s incentives and create an insurmountable hurdle for alien defendants. In Ramos, the government produced the immigration officer at a hearing only to have the court find that her translation had been inadequate. As here, the government may not always be able to produce the immigration officer; or she may be otherwise unavailable. Thus, it is not realistic to expect the defendant to produce the officer. Furthermore, if the government can stand silent and merely rely on the signed stipulation as sufficiently “clear and convincing” evidence, then it would have no incentive to produce an immigration officer witness.
In sum, we hold that the stipulated removal proceeding at Eloy violated Gomez‘s right to due process by obtaining an invalid waiver of Gomez‘s right to appeal the deportation order. The government has not met its burden of proving by “clear and convincing evidence” that Gomez validly waived his right to that appeal.5
Gomez also argues that his deportation was invalid because the IJ violated
Here, on January 19, 2006, Gomez signed the revised Notice to Appear requesting a prompt hearing before an IJ. On the same day, he signed the Stipulated Removal form waiving, inter alia, the right to a hearing before an IJ. Without a hearing, and only on the basis of Gomez‘s signed Stipulated Removal form, the IJ found Gomez‘s “waiver to be voluntary, knowing, and intelligent.” The IJ then found, “upon review of the charging document and the written stipulation that he is removable based upon clear and convinc-
We do not read Ramos to require an actual appearance by every alien before an IJ, a possibility that the district court considered here. Rather, as the district court also discussed,
[1] An Immigration Judge may enter an order of deportation, exclusion or removal stipulated to by the alien (or the alien‘s representative) and the Service. The Immigration Judge may enter such an order without a hearing and in the absence of the parties based on a review of the charging document, the written stipulation, and supporting documents, if any. [Or,]
[2] [i]f the alien is unrepresented, the Immigration Judge must determine that the alien‘s waiver is voluntary, knowing, and intelligent.
Here, we conclude that the procedures followed in removing Gomez violated
Therefore, on the basis of both his invalid waiver of the right to appeal the deportation order and the IJ‘s regulatory violation, Gomez has met the requirements of
2. Prejudice
As discussed supra, in a collateral attack on the validity of a deportation order the defendant bears the burden of proving prejudice under
Gomez argues that he was prejudiced by the due process and regula-
Under
Aside from a narrow exception not presented here,11 we look to the law at the time of the deportation proceedings to determine whether an alien was eligible for relief from deportation. Vidal-Mendoza, 705 F.3d at 1017-19; Lopez-Velasquez, 629 F.3d at 895, 897, 901. Gomez argues that Vidal-Mendoza and Lopez-Velasquez are inapplicable to our prejudice inquiry
Therefore, we must decide whether Gomez‘s conviction for “attempted sexual conduct with a minor under the age of 15” in violation of Arizona Revised Statute section 13-1405 qualified as an “aggravated felony,”
We first defined the term ‘sexual abuse of a minor’ for purposes of
The Board of Immigration Appeals (“BIA“) precedent also guides our conclusion. In In re Rodriguez-Rodriguez, 22 I. & N. Dec. 991 (B.I.A.1999), the BIA broadly defined “sexual abuse of a minor” to exceed the definitions set forth in various federal criminal statutes, so as to include abuse that did not involve actual contact. Id. at 995-96. In so holding, the BIA looked to
Most tellingly, in April 2006—just three months after Gomez‘s deportation—we relied on In re Rodriguez-Rodriguez to affirm the BIA‘s holding that sexual intercourse with a 17-year-old constituted “sexual abuse of a minor” as defined by
A conviction under this statute meets the BIA‘s interpretation of “sexual abuse of a minor” as encompassing any
offense that involves “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in ... sexually explicit conduct....” In re Rodriguez-Rodriguez, 22 I. & N. Dec. at 991, 995. Mr. Afridi had sexual intercourse with a seventeen-year-old girl who was more than three years younger than he. Sexual intercourse clearly constitutes “sexually explicit conduct,” and the seventeen-year-old victim in this matter was a “minor” as that term is commonly defined. Further, the BIA‘s definition of “sexual abuse of a minor” is not limited to victims of any certain age. Therefore, his offense falls within that definition. Accordingly, the BIA properly found that Petitioner was removable for having committed an aggravated felony....
Id. (first and second alterations in original).
Construing the two statutory provisions together, see supra note 13, Gomez‘s statute of conviction contains three elements: (1) a mens rea of “intentionally or knowingly“; (2) an act of “engaging in sexual intercourse or oral sexual contact“; and (3) a victim “who is under fifteen years of age.”
Thus, under the governing case law at the time of his deportation, Gomez‘s crime would have categorically qualified as “sexual abuse of a minor” for the purposes of
B. Sentencing
We next determine whether, under current law, Gomez‘s
The United States Sentencing Guidelines provide for a sixteen-level enhancement where the defendant was previously deported after a conviction for “a crime of violence.”
We begin by analyzing Gomez‘s conviction under the familiar categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under this approach, we look only to the elements of Gomez‘s statute of conviction, and not the particular facts underlying his conviction. 495 U.S. at 600.18 As we explained above, Gomez‘s conviction under Arizona Revised Statutes section 13-1405 B contains three elements: (1) a mens rea of “intentionally or knowingly“; (2) an act of “engaging in sexual intercourse or oral sexual contact“; and (3) a victim “who is under fifteen years of age.”
1. Generic Sexual Abuse of a Minor
We turn first to the generic definition of “sexual abuse of a minor.” Three related lines of cases compel us to conclude that the statute, even including the “under fifteen” version, is missing an element of “sexual abuse of a minor.” First, in a unanimous en banc opinion considering whether a conviction constitutes the aggravated felony “sexual abuse of a minor” as set forth in
Third, in addressing the “under eighteen” version of the statute, we have expressly determined that convictions under Arizona Revised Statutes section 13-1405 meet neither the generic definition of “sexual abuse of a minor” set forth in Estrada-Espinoza nor the generic definition of “abuse of a minor” set forth in Medina-Villa. Rivera-Cuartas v. Holder, 605 F.3d 699, 701-02 (9th Cir.2010). A conviction under this statute does not meet the definition set forth in Estrada-Espinoza “for two reasons: (1) it lacks the age difference requirement; and (2) is broader than the generic offense with respect to the age of the minor because the statute applies to persons under eighteen years of age.” Id. at 702. Here, analyzing the “under fifteen” version of
2. Generic Statutory Rape
Arizona Revised Statutes section 13-1405 is also missing an element of the generic offense of statutory rape. Whether the generic offense of statutory rape has, as an element, a four-year age difference, is an issue of first impression. The development of our law in this area, as well as the statutory law of other jurisdictions, leads us to conclude that a four-year age difference is an element of the generic offense of statutory rape. Because
We first addressed the generic offense of statutory rape in United States v. Gomez-Mendez, 486 F.3d 599 (9th Cir.2007). There, we held that “[t]he term ‘statutory rape’ is ordinarily, contemporarily, and commonly understood to mean the unlawful sexual intercourse with a minor under the age of consent specified by state statute.” Id. at 603. In Gomez-Mendez, we did not address what other elements, if any, comprised the generic offense of statutory rape.
In United States v. Gonzalez-Aparicio, 663 F.3d 419 (9th Cir.2011), we were faced with the same question presented here: whether a conviction under Arizona Revised Statutes section 13-1405 was categorically a crime of violence for the purposes of sentencing. Id. at 425-26. The district court held that it was, but did not specify whether the conviction was categorically a conviction for the generic offense of “statutory rape” or “sexual abuse of a minor.” Id. at 423-24, 425. Gonzalez-Aparicio did not object below, but on appeal, he argued that the generic offense of statutory rape has, as one of the elements, a four-year age difference. Id. at 425-26. We recognized that Estrada-Espinoza‘s definition of “sexual abuse of a minor” might bear on the definition of generic statutory rape. See id. at 429-30. Ultimately, however, we declined to decide “whether—and how[—] Estrada-Espinoza should be applied in defining the generic crime of ‘statutory rape’ under
Finally, in United States v. Zamorano-Ponce, 699 F.3d 1117, 1118 (9th Cir.2012), we again addressed the elements of the generic offense of statutory rape. Zamorano-Ponce argued that his conviction was not categorically a conviction for the generic offense of statutory rape because the statute of conviction did not include a mens rea element of “knowingly,” relying on Estrada-Espinoza. Zamorano-Ponce, 699 F.3d at 1120. We rejected this argument, explaining:
Defendant‘s reliance on Estrada-Espinoza is misplaced. That case defined the term “sexual abuse of a minor” for the purpose of considering whether a prior conviction constituted an “aggravated felony” under the Immigration and Nationality Act. Nothing in Estrada-Espinoza purports to require that “statutory rape,” within the meaning of the commentary to the Guidelines, contain a mens rea element. Nor does the case overrule or undermine Gomez-Mendez or Rodriguez-Guzman in any other way. In fact, we have recognized previously that Estrada-Espinoza never discussed or even cited to our prior “statutory rape” decisions in Gomez-Mendez and Rodriguez-Guzman.
Id. (internal quotation marks and citations omitted). Having rejected the argument that Estrada-Espinoza sets forth the elements of the generic offense of statutory rape, we held, based on Gomez-Mendez and Rodriguez-Guzman, that generic statutory rape does not have, as an element, a
We now answer that question in the affirmative. In reaching this conclusion, we follow the approach we took in Rodriguez-Guzman, looking to the Model Penal Code, federal law, and state statutory rape laws to determine whether statutory rape, in the generic sense, includes a four-year age difference. See 506 F.3d at 745; see also Estrada-Espinoza, 546 F.3d at 1152 (“In the absence of specific congressional guidance as to the elements of a crime, courts have been left to determine the generic sense in which the term is now used in the criminal codes of most States.” (internal quotation marks and citation omitted)).
The Model Penal Code‘s statutory rape provision, entitled “Corruption of Minors and Seduction,” requires a four-year age difference between the victim and the perpetrator. Model Penal Code
A male who has sexual intercourse with a female not his wife, or any person who engages in deviate sexual intercourse or causes another to engage in deviate sexual intercourse is guilty of an offense if:
(a) the other person is less than [16] years old and the actor is at least [four] years older than the other person....
Furthermore, a substantial number of state statutes now include at least a four-year age difference in their statutory rape laws.21 Forty-one states have an age difference in at least some of their statutory rape laws.22 Of those, thirty-two states require an age difference of four years or
We recognize that thirty-five states have at least one provision criminalizing sexual intercourse with minors that includes no age difference element whatsoever.28 However, in seventeen of these states,
To summarize, the elements of generic statutory rape are: (1) sexual intercourse (2) with a minor under the age of sixteen (3) who is at least four years younger than the defendant. Generic statutory rape does not have, as an element, a mens rea requirement of “knowingly.” Arizona Revised Statutes section 13-1405 is missing the four-year age difference element of the generic offense of statutory rape.33
Therefore, Arizona Revised Statute section 13-1405, even the “under fifteen” version, is missing an element of generic “statutory rape” and generic “sexual abuse of a minor.” Thus, a conviction under the statute is not categorically a conviction for a “crime of violence” under
3. Harmless Error
We also reject the government‘s argument that the sentencing error was harmless. In imposing the sentence, the district court stated:
I would also note that if I‘m wrong on the calculations ... [and] the Court or court on appeal ... find[s] that ... the four-year age differential is essential[,] ... I ... doubt very much that there would be any significant change in the sentence that‘s about to be imposed.
The district court did not actually calculate the sentence it would have imposed absent the enhancement and imposed a sentence that was above the Guidelines range absent the enhancement. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 n. 5 (9th Cir.2011) (noting that a Guidelines calculation error may be harmless if one of four nonexhaustive factors is satisfied, including if the district court “chooses a within-Guidelines sentence that falls within ... the correct Guidelines range“); see also United States v. Acosta-Chavez, 727 F.3d 903, 909-10 (9th Cir.2013).
In sum, we hold that the IJ violated an immigration regulation designed to protect an alien‘s right to judicial review and that Gomez was denied due process in his 2006 removal proceedings, but that these violations were harmless in light of his ineligibility for relief from removal. We therefore affirm the denial of his motion to dismiss the indictment. We further hold that Gomez‘s conviction under Arizona Revised Statute section 13-1405 did not constitute a “crime of violence” within the meaning of
AFFIRMED in part and VACATED in part, and REMANDED.
Notes
An Immigration Judge may enter an order of deportation, exclusion or removal stipulated to by the alien (or the alien‘s representative) and the Service. The Immigration Judge may enter such an order without a hearing and in the absence of the parties based on a review of the charging document, the written stipulation, and supporting documents, if any. If the alien is unrepresented, the Immigration Judge must determine that the alien‘s waiver is voluntary, knowing, and intelligent. The stipulated request and required waivers shall be signed on behalf of the government and by the alien and his or her attorney or representative, if any. The attorney or representative shall file a Notice of Appearance in accordance with§ 1003.16(b) . A stipulated order shall constitute a conclusive determination of the alien‘s deportability or removability from the United States. The stipulation shall include: (1) An admission that all factual allegations contained in the charging document are true and correct as written; (2) A concession of deportability or inadmissibility as charged; (3) A statement that the alien makes no application for relief under the Act; (4) A designation of a country for deportation or removal under section241(b)(2)(A)(i) of the Act; (5) A concession to the introduction of the written stipulation of the alien as an exhibit to the Record of Proceeding; (6) A statement that the alien understands the consequences of the stipulated request and that the alien enters the request voluntarily, knowingly, and intelligently; (7) A statement that the alien will accept a written order for his or her deportation, exclusion or removal as a final disposition of the proceedings; and (8) A waiver of appeal of the written order of deportation or removal.