UNITED STATES of America, Plaintiff-Appellee v. Gabriela CORDOVA-SOTO, Defendant-Appellant.
No. 14-50053.
United States Court of Appeals, Fifth Circuit.
Oct. 23, 2015.
Meghan Elizabeth Greenfield (argued), Jones Day, Washington, DC, Louis K. Fisher, Esq., for Defendant-Appellant.
Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
This is a direct criminal appeal in which the appellant is challenging her conviction for illegal reentry into the United States as a previously removed alien. See
I. PROCEDURAL HISTORY
Cordova is a Mexican national who was brought into the United States as an infant. In 1991, she attained lawful permanent residency at age 13. In May 2002, she was convicted of misdemeanor theft. The next year she was convicted of passing a worthless check. In 2005, she pleaded guilty to felony possession of methamphetamine in Kansas state court. Later that year, agents of the Immigration and Customs Enforcement Agency (ICE) served Cordova with a Notice to Appear before an IJ. The notice charged her as removable as (1) an aggravated felon based on the methamphetamine conviction, (2) an alien convicted of two crimes involving moral turpitude (theft and worthless check convictions), and (3) an alien convicted of a controlled substance offense (same methamphetamine conviction). See
At the processing center in Chicago, an ICE agent presented Cordova with a boiler plate form that was entitled Stipulated Request for Issuance of Final Order of Removal, Waiver of Appearance and Hearing (Stipulated Form of Removal). The agent told Cordova that she had no basis to challenge her removal and that any attempts to challenge it would only prolong her detention. The agent informed her that she could call a legal service organization and gave her a list of phone numbers. Cordova called one legal service organization and briefly spoke to a person who also told her that she did not have any basis for seeking cancellation of removal. Cordova, who speaks and reads English, signed the Stipulated Form of Removal and dated it November 1, 2005. The form provided that she had been fully advised of [her] rights and hereby voluntarily, knowingly and intelligently enter[s] into the following stipulations. It also provid
On November 8, 2005, after finding Cordova removable, the IJ accepted the Stipulated Form of Removal and ordered her removed to Mexico. Approximately three weeks later, on November 27, 2005, Cordova reentered the United States. Several years later, on March 18, 2010, local law enforcement officers discovered Cordova in Kansas. On September 15, 2010, she was taken into the custody of the Department of Homeland Security. The 2005 order of removal was reinstated, and Cordova was removed to Mexico on September 26, 2010. She appealed to the Board of Immigration Appeals (BIA), and her appeal was dismissed. Cordova appealed to the Tenth Circuit, requesting review of the initial removal order and the reinstated removal order, and her petition was denied. Cordova-Soto v. Holder, 659 F.3d 1029, 1030 (10th Cir. 2011). The Tenth Circuit held that it did not have jurisdiction to review the 2005 order because she had not filed her petition for review within 30 days of her 2005 removal as directed by
On January 24, 2012, Cordova filed a motion seeking to reopen her 2005 order of removal in the Kansas City Immigration Court, which the IJ denied on June 6, 2012. The BIA upheld the IJ‘s decision on September 17, 2012. Cordova petitioned for review of the denial of the motion to reopen the 2005 removal order in the Seventh Circuit. Cordova-Soto v. Holder, 732 F.3d 789, 793 (7th Cir. 2013), cert. denied, 135 S. Ct. 85 (2014). Like the Tenth Circuit, the Seventh Circuit held that it did not have jurisdiction to review the 2005 removal order because the appeal was not filed within the 30-day time limit contained in
Cordova pleaded guilty. In the plea agreement, Cordova reserved the right to appeal all issues relating to the district court‘s ruling on the motion to dismiss the indictment. Cordova now appeals.
II. ANALYSIS
Cordova contends that because her prior order of removal was invalid, the district court erred in denying her motion to dismiss the instant indictment charging her with illegal reentry. We review de novo a district court‘s denial of a motion to dismiss the indictment, including any underlying constitutional claims. United States v. Villanueva-Diaz, 634 F.3d 844, 848 (5th Cir. 2011). This court accepts all factual findings made by the district court in connection with that ruling unless clearly erroneous. Id. A factual finding is clearly erroneous only if, based on the entirety of the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been made. United States v. Valdez, 453 F.3d 252, 262 (5th Cir. 2006).
The Supreme Court has held that an alien who is prosecuted for illegal reentry may collaterally attack the underlying removal order. United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987). More specifically, the Supreme Court held that due process requires collateral review of deportation orders that form the basis of a prosecution for illegal reentry, explaining 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. Id. at 838. After Mendoza-Lopez, this court held that to collaterally attack a prior removal order in a criminal proceeding, the alien must demonstrate that:
- the removal hearing was fundamentally unfair;
- the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the order; and
- the proce
dural deficiencies caused the alien actual prejudice.
United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002). To show prejudice, an alien must show that there was a reasonable likelihood that but for the errors complained of the defendant would not have been deported. United States v. Benitez-Villafuerte, 186 F.3d 651, 658-59 (5th Cir. 1999). This test was effectively codified in
- the alien exhausted any administrative remedies that may have been available to seek relief against the order;
- the deportation proceeding 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.
To successfully challenge a removal order, the alien must prove all three prongs. If the alien fails to establish one prong of the three part test, the Court need not consider the others. United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003).
A. Fundamentally Unfair Under § 1326(d)
Cordova contends that her removal proceedings, which formed the basis for the instant criminal conviction, were fundamentally unfair.
In Cordova‘s motion to dismiss the indictment filed in the district court, she failed to argue that her waiver was involuntary based on the alleged misinformation from the ICE agent. The factual section of her motion explained that the agent advised her that if she wanted to be removed quickly she should sign the waiver form and that either way, she was going to be deported. The factual section of her motion also stated that [n]otwithstanding that the law concerning simple drug possession was in flux, on November 7, 2005, ICE agents persuaded Cordova to sign the waiver of removal hearing. Nonetheless, Cordova never argued that the agent‘s advice rendered her waiver involuntary. Instead, she only challenged the validity of her waiver based on the IJ‘s failure to expressly find that her stipulated removal request and waiver of rights was voluntary and knowing. Tellingly, the district court did not address a claim that the waiver was rendered involuntary by the ICE agent‘s advice.3 Thus, we will first review de novo her argument that the IJ‘s failure to make a finding with respect to the voluntariness of her waiver rendered the proceedings fundamentally unfair. We will then review for plain error her argument that the agent‘s advice rendered her waiver involuntary. See Puckett v. United States, 556 U.S. 129, 135 (2009).
Cordova correctly contends that the IJ failed to expressly find that her waiver was voluntary, knowing, and intelligent as required by
Cordova, who was unrepresented, argues that this error rendered her removal proceedings fundamentally unfair and that she was deprived of an immigration hearing in violation of due process. This court has not addressed the precise question of whether an IJ‘s failure to expressly make a determination of the voluntariness of the waiver in violation of
Nonetheless, this court‘s precedent with respect to determining whether an alien has received due process during deportation proceedings provides guidance for the instant analysis. In Benitez-Villafuerte, an alien was convicted of an aggravated felony and deported following expedited removal proceedings conducted within the Immigration and Naturalization Service (INS). 186 F.3d at 654. Benitez subsequently reentered the United States without permission and was charged with illegal reentry after deportation under
On appeal, this court explained that the due process clause prohibits the government from arbitrarily ... causing an alien who has entered the country illegally to be taken into custody and deported without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States. Id. (quoting Yamataya v. Fisher, 189 U.S. 86, 101 (1903)). [D]ue process requires only that an alien be provided notice of the charges against him, a hearing before an executive or administrative tribunal, and a fair opportunity to be heard. Id. at 657. However, due process rights, including the right to a hearing, can be waived. Id.
In Benitez-Villafuerte, the record demonstrated that an INS agent gave Benitez notice of the charges against him and that the agent explained to him that he had a right to a hearing to contest the charges. Id. at 658. Benitez waived that right. Id. Additionally, Benitez waived his right to a 14-day stay of execution of the deportation order. Id. This court stated that the record showed Benitez was provided with ample constitutional protection. Id. We noted that there was no record evidence
Here, Cordova received notice of the charges and was informed that she had the right to be represented by an attorney. The agent gave Cordova the telephone numbers to legal services organizations. She called one of the numbers and was given the same advice that the agent had provided. She was also told that she could contest the charges in a hearing. After being informed of those rights, Cordova signed the stipulation waiving them. This sequence of events is indistinguishable from the procedural due process afforded in Benitez-Villafuerte, and there we held that the alien received ample constitutional protection.6
Moreover, the district court found that the record evidence supports an implicit finding that Cordova‘s waiver was knowing and voluntary. We have construed an administrative record as showing that an IJ made an implicit finding of good moral character, which was a prerequisite for the grant of voluntary departure. Rodriguez-Gutierrez v. INS, 59 F.3d 504, 508 (5th Cir. 1995). Thus, we now look to see whether the district court clearly erred in finding that the record supports an implicit finding that the IJ determined the waiver was knowing and voluntary.
The district court began by observing that Cordova did not claim that the waiver was actually unknowing and involuntary. The court stated that Cordova had lived in this country since she was an infant and spoke English fluently. The court found that the waiver form she signed was written in plain, non-legalese language that clearly stated the legal effect of the instrument. Additionally, the court noted that the record demonstrated that an immigration officer explained to her the provisions in the form and what legal rights she was waiving. The district court stated that all of these facts support a finding that Cordova intelligently, knowingly, and voluntarily signed the waiver form. The court further found that the IJ‘s acceptance of the waiver supports an implicit finding that the IJ determined the waiver was knowing and voluntary. Under these circumstances, Cordova has not shown that the district court‘s findings are clearly erroneous or that the court abused its discretion in not conducting an evidentiary hearing. See United States v. Gutierrez, 343 F.3d 415, 421 (5th Cir. 2003). Our decision rests upon the particular facts as presented in this appeal. Of course, the better procedure is for an ICE agent to contemporaneously certify his explanation of rights and the alien‘s waiver, as well as for an IJ to follow the regulation, which directs him to make the finding regarding voluntariness.
2. Advice from the ICE Agent
Cordova also contends that the ICE agent misinformed her with respect to her eligibility for relief from removal and that the misinformation induced her to sign the waiver. As previously mentioned, because Cordova did not raise this argument before the district court, we review it for plain error. See United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). To succeed on plain error review, an appellant must show (1) a forfeited error, (2) that is clear or obvious, and (3) that affects her substantial rights. See Puckett, 556 U.S. at 135. If an appellant makes such a showing, we may exercise our discretion to remedy the error ... only if the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Id. (alteration in original) (internal quotation marks and citation omitted).8
Cordova contends that the ICE agent incorrectly advised her that her prior drug conviction was an aggravated felony, which rendered her ineligible for relief from removal, and that the misinformation induced her to sign the waiver. Having an aggravated felony makes an alien ineligible for cancellation of removal,
Cordova contends that the misinformation about the possibility of obtaining relief rendered her waiver unknowing and involuntary. Relying on Mendoza-Lopez, Cordova asserts that the invalid waiver rendered her removal proceedings fundamentally unfair. However, in Mendoza-Lopez, the Supreme Court accepted the government‘s invitation to assume (and not decide) that the respondents’ rights to due process were violated by the failure of the Immigration Judge to explain adequately their right to suspension of deportation or their right to appeal. 481 U.S. at 839-40. Thus, Cordova‘s reliance on Mendoza-Lopez is misplaced.
Cordova recognizes our precedent and attempts to distinguish her case. She asserts that Lopez-Ortiz does not control her case because she did not receive a hearing, and it was undisputed that Lopez-Ortiz was afforded a hearing and a fair opportunity to be heard. 313 F.3d at 230-31. Cordova argues that the misinformation regarding her eligibility to avoid removal resulted in the deprivation of her right to a removal hearing, a right that Lopez-Ortiz emphasized is guaranteed by principles of due process. Thus, she contends that her case is not governed by Lopez-Ortiz‘s holding on fundamental fairness.9
We are not persuaded that Lopez-Ortiz does not control. Although the right to a hearing is guaranteed by due process, as previously explained, such a right can be waived. A majority of circuits agree with our holding in Lopez-Ortiz that there is no constitutional right to be informed of eligibility for—or to be considered for—discretionary relief. United States v. Soto-Mateo, 799 F.3d 117, 123 (1st Cir. 2015); United States v. Santiago-Ochoa, 447 F.3d 1015, 1020 (7th Cir. 2006); United States v. Torres, 383 F.3d 92, 104-06 (3rd Cir. 2004); United States v. Aguirre-Tello, 353 F.3d 1199, 1204-05 (10th Cir. 2004) (en banc); Smith v. Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002); Oguejiofor v. Attorney General, 277 F.3d 1305, 1309 (11th Cir. 2002); Escudero-Corona v. INS, 244 F.3d 608, 615 (8th Cir. 2001); Ashki v. INS, 233 F.3d 913, 921 (6th Cir. 2000). But see United States v. Copeland, 376 F.3d 61, 70-73 (2d Cir. 2004) (opining that a failure to advise a potential deportee of a right to seek Section 212(c) relief can, if prejudicial, be fundamentally unfair); United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000) (explaining that the IJ‘s failure to inform the alien of eligibility for relief from removal violated due process).
Moreover, in the above-cited First and Seventh Circuit cases, the aliens waived their right to a hearing and did not appear before an IJ. Soto-Mateo, 799 F.3d at 119; Santiago-Ochoa, 447 F.3d at 1019. Although the aliens had waived their right to a hearing, those two circuits held that the aliens had no constitutional right to be informed of their eligibility for discretionary relief. Those two cases are indistinguishable from Cordova‘s case. Agreeing with our sister circuits’ reasoning, Cordova is precluded from showing that any error was clear or obvious.
Additionally, Cordova has not shown that the ICE agent‘s advice affected her substantial rights. In other words, she has failed to show that the agent‘s advice prejudiced her. If Cordova had gone be-
B. Judicial Review and Exhaustion Under § 1326
Because Cordova failed to prove that her immigration proceedings were fundamentally unfair, we are not required to consider the other prongs of the test. Mendoza-Mata, 322 F.3d at 832. We briefly address the two remaining prongs of the test.
Cordova argues that she was improperly deprived of the opportunity for judicial review because her stipulation waiving review was invalid. As discussed above, we rejected her argument that the waiver was invalid, and thus, this argument falls under its own weight.
Similarly, Cordova contends that she is excused from exhausting her admin-istrative remedies because the waiver was invalid. This argument likewise falls under its own weight. Cordova also argues that by filing the motion to reopen the proceedings in immigration court, she exhausted her administrative remedies. It is undisputed that she filed the motion to reopen years beyond the 90-day deadline. This court has held that filing an untimely motion to reopen removal proceedings more than one year after the expiration of the limitation period does not exhaust an alien‘s administrative remedies. Panova-Bohannan v. Gonzales, 157 Fed. Appx. 706, 707 (5th Cir. 2005). Thus, we conclude that she did not properly exhaust her administrative remedies.
III. CONCLUSION
For the above reasons, the judgment of the district court is AFFIRMED.
FORTUNATO P. BENAVIDES
UNITED STATES CIRCUIT JUDGE