United States v. Gabriela Cordova-Soto ( 2015 )

Case: 14-50053 Document: 00513245181 Page: 1 Date Filed: 10/23/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-50053 FILED
October 23, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
GABRIELA CORDOVA-SOTO,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
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 8 U.S.C. § 1326. Appellant Gabriela Cordova-Soto (“Cordova”)
appeals the district court’s denial of her motion to dismiss the indictment,
arguing that the order of removal, which formed the basis for the instant
offense, was invalid. More specifically, Cordova contends that the Immigration
Judge (“IJ”) failed to expressly find that her waiver of rights and stipulation of
removability was voluntary, knowing, and intelligent as required by 8 C.F.R.
§ 1003.25(b). She also contends that her waiver was involuntary because it
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was induced by incorrect advice given to her by an immigration officer. Finding
no reversible error, we AFFIRM.
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 8 U.S.C. § 1227(a)(2)(A)(ii), (a)(2)(A)(iii),
and (a)(2)(B)(i).
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
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the following stipulations.” It also provided that she had been advised of her
right to be represented by counsel and right to a removal hearing. It further
provided that she waived any right to make any application for relief from
removal under the Immigration and Nationality Act. On the final page of the
form, albeit dated six days later on November 7, 2005, ICE Agent James
Gutierrez certified that he had read and explained the document to Cordova.
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 8 U.S.C. § 1252(b)(1). Id. at
1032. The court found that it had jurisdiction to review the 2010 removal order
but denied it on the merits. Id. at 1035. The court held that “[b]ecause she
could not have entered the United States legally at [the time of her reentry],
her reentry was illegal and she was therefore subject to reinstatement of her
previous removal order under 8 U.S.C. § 1231(a)(5).” Id. 1
1 Section 1231(a)(5) provides as follows:
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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 8 U.S.C. § 1252(b)(1). Id. 2 The court explained that although it
did have jurisdiction to consider the merits of the denial of Cordova’s motion
to reopen, it held that 8 U.S.C. § 1231(a)(5) “prohibits collateral review after
the review of the reinstatement is complete.” Id. at 795. The court thus denied
the petition. Id. at 796.
Meanwhile, on September 6, 2012, Border Patrol agents arrested
Cordova for being an alien illegally present in the United States. On October
3, a grand jury in Del Rio, Texas indicted Cordova for the offense of illegal
reentry after removal in violation of 8 U.S.C. § 1326. Cordova filed a motion
to dismiss the indictment, challenging the validity of the 2005 removal order.
She argued, among other things, that the removal order was fundamentally
If the Attorney General finds that an alien has reentered the United
States illegally after having been removed or having departed voluntarily,
under an order of removal, the prior order of removal is reinstated from its
original date and is not subject to being reopened or reviewed, the alien is not
eligible and may not apply for any relief under this chapter, and the alien shall
be removed under the prior order at any time after the reentry.
2 The government moved to dismiss the petition for improper venue or transfer to the Eighth
Circuit. 732 F.3d at 792. The Seventh Circuit recognized that a petition for review should
be filed with the court of appeals for the judicial circuit in which the IJ completed the
proceedings. Id.; 8 U.S.C. § 1252(b)(2). However, the court stated that the statute was not
jurisdictional and concluded that the interest of justice favored retaining the petition in the
Seventh Circuit. Id.
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unfair because the IJ did not conduct a hearing and expressly determine that
her waiver of rights in the Stipulated Form of Removal was voluntary,
knowing, and intelligent as required by 8 C.F.R. § 1003.25(b). The district
court noted that (1) Cordova is fluent in English, (2) the stipulation she signed
is written in plain language that clearly stated the legal effect of signing the
waiver, (3) she does not in fact claim that she unknowingly signed it—only that
the IJ failed to make such a determination, and (4) the record contains a
certification by the ICE agent that he explained to her the rights she was
waiving by signing the document. The district court ruled that “[a]ll of these
facts taken together support a finding that the Defendant intelligently,
knowingly, and voluntarily entered into the Stipulation of removal.” The court
further found that although the IJ did not conduct a hearing or colloquy to
determine whether her waiver was voluntary and knowing, “the acceptance of
the Stipulation supports an implicit finding that the IJ determined the
Stipulation was given as such.” Accordingly, the district court denied the
motion to dismiss the indictment.
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
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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:
(1) the removal hearing was fundamentally
unfair; (2) the hearing effectively eliminated the
right of the alien to challenge the hearing by
means of judicial review of the order; and (3) the
procedural 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 8 U.S.C. § 1326(d). United States v. Lopez-
Vasquez, 227 F.3d 476, 483 n.13 (5th Cir. 2000). Section 1326(d) provides that
an alien may not challenge the validity of a removal order unless the alien
establishes that:
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(1) the alien exhausted any administrative remedies
that may have been available to seek relief against the
order; (2) the deportation proceeding at which the
order was issued improperly deprived the alien of the
opportunity for judicial review; and (3) 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. § 1326(d)(3).
“Fundamental fairness is a question of procedure.” Lopez-Ortiz, 313 F.3d at
230. Cordova contends that her waiver of the right to a hearing before the IJ
was invalid because it was based on critical misinformation with respect to the
possibility of cancelling her removal. Additionally, she contends that the IJ’s
failure to expressly make a determination that her waiver was knowing and
voluntary in violation of the pertinent regulation rendered her removal
proceedings involuntary.
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
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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).
1. IJ’s Failure to Make a Finding of Voluntariness
Cordova correctly contends that the IJ failed to expressly find that her
waiver was voluntary, knowing, and intelligent as required by 8 C.F.R. §
1003.25(b). Section 1003.25(b) provides that an IJ “may enter [a removal]
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.” However, “[i]f the alien is unrepresented, the Immigration Judge must
determine that the alien’s waiver is voluntary, knowing, and intelligent.” Id.
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 8 C.F.R. §
3 Indeed, the district court stated that although Cordova repeatedly contended that the IJ
failed to make a voluntariness determination, she never claimed that her waiver was actually
unknowing and involuntary.
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1003.25(b) constitutes a due process violation that renders the removal
proceedings fundamentally unfair. 4
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 § 1326. Id. Like Cordova, Benitez challenged the validity of the
deportation order that formed the basis of the illegal reentry prosecution. Id.
at 656. The district court held that “Benitez’s waiver of rights executed before
INS officers did not constitute an effective waiver of his basic rights to
judicially contest his deportation because his waiver had not been made in
open court before a neutral magistrate who could affirm that the waiver was
knowing and voluntary.” Id.
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,
4 See Altamirano-Lopez v. Keisler, 250 F. App’x 658, 659 (5th Cir. 2007) (although petitioners
raised a due process violation based on the IJ’s failure to determine whether their waivers
were voluntary under § 1003.25(b), this court did not reach the argument because it
dismissed the claims for lack of jurisdiction).
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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 that Benitez’s waiver was not knowing
and voluntarily. Id. 5
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, and there we held that that the alien received ample constitutional
protection. 6
5 In Benitez, the alien argued that his waiver of rights was not voluntary. 186 F.3d at 660
n.9. However, because the alien failed to show prejudice, the court did not consider the
argument on appeal. Id.
6 Citing Rule 11 of the Federal Rules of Criminal Procedure, Cordova contends that the IJ’s
failure to make a determination of the voluntariness of her waiver of rights is akin to a
district court’s failure to conduct a plea colloquy prior to accepting a guilty plea. This
contention is without merit. “Removal hearings are civil proceedings, not criminal; therefore,
procedural protections accorded an alien in a removal proceeding are less stringent than
those available to a criminal defendant.” Lopez-Ortiz, 313 F.3d at 230.
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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. § 1003.25(b). Nevertheless,
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the “failure of an agency to follow its own regulations is not, however, a per se
denial of due process unless the regulation is required by the constitution or a
statute.” Arzanipour v. INS, 866 F.2d 743, 746 (5th Cir. 1989). As discussed
above, this court’s opinion in Benitez supports our conclusion that due process
does not require a separate finding by an IJ that the pro se alien’s waiver is
knowing and voluntary. 7 We reject Cordova’s claim that the IJ’s failure to
make an express determination of voluntariness constituted a due process
violation and conclude that such failure did not render her proceedings
fundamentally unfair.
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 v. United
States, 556 U.S. 129, 135 (2009). 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
7 In contrast, the Ninth Circuit has held that an IJ could not have found that the alien’s
waiver was voluntary and knowing based only on the signed stipulated form of removal.
United States v. Gomez, 757 F.3d 885, 898 (9th Cir. 2014). The court found that it constituted
an invalid waiver of the right to appeal and that it was a violation of 8 C.F.R. § 1003.25(b).
8 The government argues that Cordova’s plea agreement waived this claim. The plea
agreement waived any appeal except for “issues relating to the district court’s ruling on
Defendant’s Motion to Dismiss Indictment.” Because this issue is related to the court’s ruling
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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, 8 U.S.C. § 1229b(a)(3), and Cordova was charged with having an
aggravated felony, the methamphetamine conviction. The agent’s advice
regarding the availability of relief was correct with respect to the applicable
BIA precedent at the time. In re Ismael Yanez-Garcia, 23 I & N Dec. 390, 398
(BIA 2002). However, a few months after Cordova’s removal proceedings, the
Seventh Circuit and the Supreme Court determined that an offense such as
Cordova’s drug conviction does not qualify as an aggravated felony. Gonzales-
Gomez v. Achim, 441 F.3d 532, 533 (7th Cir. 2006); Lopez v. Gonzales, 549 U.S.
47, 60 (2006).
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.
Our precedent precludes Cordova from demonstrating plain error. We
have held that relief that is “available within the broad discretion of the
on the motion to dismiss the indictment, we reject the government’s argument that this claim
is waived by the plea agreement.
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Attorney General is not a right protected by due process.” Lopez-Ortiz, 313 F.3d
at 231. More specifically, we held that because an alien’s eligibility for
discretionary relief from removal is not a liberty or property interest deserving
of due process protection, an IJ’s failure to explain the eligibility for such relief
“does not rise to the level of fundamental unfairness.” Id. It is undisputed that
the cancellation of removal at issue in the instant case constitutes
discretionary relief. Accordingly, it follows that the ICE agent’s failure to
explain to Cordova that there was a possibility that she could become eligible
for discretionary relief does not demonstrate fundamental unfairness.
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,
9 Alternatively, Cordova seeks to preserve the argument that the holding in Lopez-Ortiz is
incorrect and should be overturned by this court en banc or by the Supreme Court.
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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 of U.S., 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 before the IJ, there is no reason to
believe that the IJ would have given her different advice with respect to her
eligibility for cancellation of removal. As she points out, the alien in Lopez-
Ortiz was afforded a hearing before an IJ. 313 F.3d at 227. However, in Lopez-
Ortiz, once the IJ found the alien removable, the alien declined to remain in
detention and did not appeal the ruling. Id. Cordova has failed to show that
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she would have changed her mind about her willingness to remain detained
had the same advice been given to her by an IJ instead of the agent. Cf. Soto-
Mateo, 799 F.3d at 123–24 (explaining that the “appellant’s unsolicited request
to speed up the removal process is some indication that he had no stomach for
deportation proceedings (during which he was likely to have been detained)”).
Cordova has failed to show prejudice and thus cannot show her substantial
rights were affected. At least in the context of plain error, Cordova has not
carried her burden of showing that the agent’s advice rendered her proceedings
fundamentally unfair.
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
administrative 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.
16
Case: 14-50053 Document: 00513245181 Page: 17 Date Filed: 10/23/2015
No. 14-50053
Panova-Bohannan v. Gonzales, 157 F. App’x 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.
17