United States v. Jesus Valdez-Novoa ( 2015 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,              No. 12-50336
    Plaintiff-Appellee,
    D.C. No.
    v.                   3:11-cr-00872-JAH-1
    JESUS VALDEZ-NOVOA,
    Defendant-Appellant.         ORDER AND
    AMENDED
    OPINION
    Appeal from the United States District Court
    for the Southern District of California
    John A. Houston, District Judge, Presiding
    Argued and Submitted
    November 6, 2013—Pasadena, California
    Filed July 28, 2014
    Amended February 27, 2015
    Before: M. Margaret McKeown, Ronald M. Gould,
    and Jay S. Bybee, Circuit Judges.
    Order;
    Opinion by Judge Bybee;
    Dissent by Judge McKeown
    2             UNITED STATES V. VALDEZ-NOVOA
    SUMMARY*
    Criminal Law
    The panel amended an opinion and dissent filed on July
    28, 2014, in a case in which the panel affirmed a conviction
    for attempting to enter the United States without consent after
    having been previously removed under 8 U.S.C. § 1326(a).
    The panel also denied a petition for panel rehearing, and
    denied on behalf of the court a petition for rehearing en banc.
    The defendant collaterally attacked the underlying June
    11, 1999, removal order, alleging that the immigration judge
    erred in concluding that he had been convicted of an
    aggravated felony and therefore violated his right to due
    process by failing to advise him of his apparent eligibility for
    voluntary departure relief.
    The panel held that even if the IJ should have informed
    the defendant of his apparent eligibility for voluntary
    departure, the defendant was not prejudiced by the alleged
    error because the defendant has not shown that it is plausible
    that an IJ would have granted a request for voluntary
    departure in light of his negative and positive equities at the
    time of the removal proceedings. Because the defendant was
    not prejudiced by the presumed error, the panel concluded
    that the removal order was not fundamentally unfair under
    8 U.S.C. § 1326(d)(3).
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. VALDEZ-NOVOA                 3
    The panel held that the conviction based on the
    defendant’s videotaped confession does not run afoul of the
    corpus delicti doctrine because ample record evidence
    corroborates the defendant’s confession to the gravamen of
    the offense and establishes the trustworthiness of his
    statement to a DHS officer.
    Dissenting, Judge McKeown wrote separately because the
    majority elevates the benchmark for prejudice, the
    “plausibility” inquiry, to the higher standard of either
    preponderance or probability. She would reverse the district
    court’s judgment because it is plausible that the IJ would
    have exercised discretion to grant voluntary departure.
    COUNSEL
    Kristi A. Hughes (argued) and Lauren D. Cusick, Federal
    Defenders of San Diego, Inc., San Diego, California, for
    Defendant-Appellant.
    Daniel E. Zipp (argued), Assistant United States Attorney;
    Laura E. Duffy, United States Attorney; Bruce R. Castetter,
    Assistant United States Attorney, Chief, Appellate Section,
    Criminal Division, San Diego, California, for Plaintiff-
    Appellee.
    4           UNITED STATES V. VALDEZ-NOVOA
    ORDER
    The opinion and dissent filed on July 28, 2014, and
    appearing at 
    760 F.3d 1013
    (9th Cir. 2014), are hereby
    amended. The superseding amended opinion and amended
    dissent will be filed concurrently with this order.
    With these amended opinions, the panel has voted to deny
    the petition for panel rehearing. The full court has been
    advised of the petition for rehearing en banc, and no judge
    has requested a vote on whether to rehear the matter en banc.
    Fed. R. App. P. 35. The petition for rehearing and the
    petition for rehearing en banc, filed September 10, 2014, is
    DENIED. No subsequent petitions for rehearing or rehearing
    en banc may be filed.
    OPINION
    BYBEE, Circuit Judge:
    Jesus Valdez-Novoa, a native and citizen of Mexico,
    appeals his conviction for attempting to enter the United
    States without consent after having been previously removed
    in violation of 8 U.S.C. § 1326(a). We have jurisdiction
    under 28 U.S.C. § 1291. We affirm.
    Valdez-Novoa entered the U.S. without inspection in
    1983 and has never obtained legal status. On June 11, 1999,
    an Immigration Judge (IJ) deemed Valdez-Novoa removable
    and prohibited him from reentering the U.S. at any time
    because he had been convicted of an aggravated felony.
    Throughout the next decade, Valdez-Novoa returned to the
    UNITED STATES V. VALDEZ-NOVOA                    5
    U.S. on several occasions and each time he was subsequently
    removed pursuant to the IJ’s 1999 order. On February 16,
    2011, Valdez-Novoa attempted to reenter the U.S. on foot at
    the San Ysidro Port of Entry. At trial, the government
    introduced a videotaped conversation between Valdez-Novoa
    and a Department of Homeland Security (DHS) officer in
    which Valdez-Novoa explained that he was attempting to
    cross the border using an identification document bearing
    another person’s name that he had purchased in Mexico. He
    also confessed that he had been previously removed several
    times and that he had not requested permission to return to
    the U.S. Valdez-Novoa was convicted and sentenced to
    seventy months’ imprisonment.
    Valdez-Novoa raises two issues on appeal. First, he
    collaterally attacks the underlying June 11, 1999, removal
    order under 8 U.S.C. § 1326(d). He alleges that the IJ erred
    in concluding that he had been convicted of an aggravated
    felony and therefore violated his right to due process by
    failing to advise him of his apparent eligibility for voluntary
    departure relief. We hold that even if the IJ should have
    informed Valdez-Novoa of his apparent eligibility for
    voluntary departure, the failure to do so did not render the
    removal proceedings “fundamentally unfair” under
    § 1326(d)(3) because Valdez-Novoa was not prejudiced by
    the alleged error. We therefore conclude that the June 11,
    1999, removal order is a valid predicate to a conviction for
    attempted illegal reentry in violation of § 1326(a).
    Second, Valdez-Novoa contends that the government
    failed to introduce sufficient independent evidence to satisfy
    the corpus delicti rule. We hold that ample record evidence
    corroborates Valdez-Novoa’s confession to the gravamen of
    the offense and establishes the trustworthiness of his
    6           UNITED STATES V. VALDEZ-NOVOA
    statement to the DHS officer. For these reasons, the
    conviction based on Valdez-Novoa’s videotaped confession
    does not run afoul of the corpus delicti doctrine.
    I
    A. Valdez-Novoa’s Immigration and Criminal History
    Valdez-Novoa arrived in the U.S. without inspection in
    1983 when he was nine years old. He lived with his parents
    and eight siblings in California. Although Valdez-Novoa’s
    parents and siblings eventually obtained legal status, he
    remained in the U.S. without documentation.
    Over the next two decades, Valdez-Novoa accumulated
    a substantial criminal record. In 1992, he was convicted of
    misdemeanor driving under the influence and sentenced to
    probation.     Two years later, he was convicted of
    misdemeanor disobeying a court order and sentenced to six
    days in jail and probation. Later that same year, Valdez-
    Novoa was again convicted of misdemeanor driving under the
    influence as well as misdemeanor driving with a suspended
    license and sentenced to twelve days in jail and probation. In
    1996, he was convicted of felony assault likely to cause great
    bodily injury. According to the probation officer’s report,
    Valdez-Novoa grabbed his ex-girlfriend by the hair and threw
    her onto the hood of his car. Valdez-Novoa then fought his
    ex-girlfriend’s companion when he intervened. He was
    sentenced to 180 days in jail and three years’ probation. His
    parole was twice revoked, and he served additional time in
    custody.
    After his conviction for felony assault likely to cause
    great bodily injury, the Immigration and Naturalization
    UNITED STATES V. VALDEZ-NOVOA                  7
    Service (INS) served Valdez-Novoa with a notice to appear.
    The agency released him on bond pending his removal
    proceedings.     In 1998, while awaiting his removal
    proceedings, Valdez-Novoa was convicted of felony reckless
    driving causing great bodily injury and misdemeanor driving
    with a suspended license. According to the police
    investigation report, Valdez-Novoa followed a car carrying
    two men whom he had been harassing, caused a collision by
    cutting in front of them, and then rammed their car until it
    flipped off the road. One of the victims experienced
    significant bleeding while Valdez-Novoa fled the scene. He
    was sentenced to two years’ imprisonment.
    Upon Valdez-Novoa’s release from California state prison
    on June 11, 1999, an IJ deemed him removable and
    prohibited him from reentering the U.S. at any time because
    he had been convicted of an aggravated felony. The INS
    removed Valdez-Novoa to Mexico four days later, but
    Valdez-Novoa quickly returned to the U.S. A police officer
    who recognized Valdez-Novoa detained him, and, on
    January, 18, 2000, he was again removed to Mexico pursuant
    to the June 11, 1999 removal order. At some point within the
    next few months, Valdez-Novoa crossed the border again.
    On October 1, 2000, he was convicted of misdemeanor
    driving under the influence and sentenced to 150 days in jail
    and probation.
    Upon being released from jail, Valdez-Novoa was
    removed to Mexico for the third time on May 16, 2001. Two
    years later, he was again arrested for misdemeanor driving
    under the influence and sentenced to eleven days in jail and
    probation. On October 3, 2003, Valdez-Novoa was removed
    to Mexico for the fourth time. He returned to the U.S., and
    seven days later, he was removed again.
    8           UNITED STATES V. VALDEZ-NOVOA
    In 2004, Valdez-Novoa was convicted of misdemeanor
    driving under the influence and sentenced to twenty days in
    jail and probation. In 2005, he was again convicted of
    misdemeanor driving under the influence and sentenced to
    fourteen days in jail and probation. And, in 2006, he was
    convicted of felony driving under the influence and
    misdemeanor driving with a suspended license and sentenced
    to thirty months’ imprisonment.
    On June 2, 2008, after he was released from California
    state prison, Valdez-Novoa was removed to Mexico. Once
    more he returned to the U.S., and, nine days later, he was
    removed for the seventh time. Valdez-Novoa soon reentered
    the U.S. again. In November 2008, he was convicted of
    felony transportation or sale of methamphetamine and
    sentenced to four years in federal prison. On January 18,
    2011, Valdez-Novoa was released from prison and removed
    to Mexico pursuant to the original June 11, 1999, removal
    order.
    B. The Attempted Illegal Reentry at Issue in This Case
    On February 16, 2011, Valdez-Novoa once more
    attempted to return to the U.S. This time he was detained by
    Customs and Border Protection officials at the San Ysidro
    Port of Entry and indicted for attempted illegal reentry in
    violation of 8 U.S.C. § 1326(a). At trial, DHS Customs and
    Border Protection Officer Edgar Pascua testified that he was
    working in the secondary screening area at the San Ysidro
    Port of Entry on February 16, 2011. Pascua explained that he
    prepared a report stating that on that date he fingerprinted a
    man who matched Valdez-Novoa’s profile in the Integrated
    Automated Fingerprinting Identification System.
    UNITED STATES V. VALDEZ-NOVOA                     9
    Next, DHS Criminal Enforcement Officer Sue Curtis
    testified that she placed Valdez-Novoa under arrest and
    advised him of his Miranda rights. The government
    introduced a videotaped recording of Curtis’s interview with
    Valdez-Novoa. During the interview, Valdez-Novoa stated
    that he had presented an identification document bearing the
    name Omar Parra-Sanchez. He explained that he had
    purchased the document from a woman in Tijuana, Mexico.
    Valdez-Novoa acknowledged that he understood that it is
    illegal to present another person’s identification in order to
    gain entry into the U.S. He further admitted that he had been
    removed to Mexico about a month earlier and on other
    occasions dating back to 1999 and that he had not requested
    permission to reenter the U.S.
    After the jury returned a guilty verdict, the district court
    entered judgment and sentenced Valdez-Novoa to seventy
    months’ imprisonment. Valdez-Novoa timely appealed.
    II
    Valdez-Novoa’s first argument on appeal is that the
    district court erred in denying his motion to dismiss the
    indictment on the basis that the June 11, 1999, removal order
    was invalid under 8 U.S.C. § 1326(d). We “review[] de novo
    the denial of a motion to dismiss an 8 U.S.C. § 1326
    indictment when the motion to dismiss is based on alleged
    due process defects in an underlying deportation proceeding.”
    United States v. Muro-Inclan, 
    249 F.3d 1180
    , 1182 (9th Cir.
    2001).
    10           UNITED STATES V. VALDEZ-NOVOA
    A. Statutory Framework
    A jury convicted Valdez-Novoa of violating 8 U.S.C.
    § 1326(a), which imposes criminal sanctions on “any alien
    who—(1) has been denied admission, excluded, deported, or
    removed . . . and thereafter (2) enters, attempts to enter, or is
    at any time found in, the United States, unless . . . the
    Attorney General has expressly consented.” In § 1326(d), the
    statute offers a limited avenue by which the defendant can
    collaterally attack the underlying removal order that serves as
    a predicate to his conviction for violating § 1326(a). Section
    1326(d) provides in relevant part that
    an alien may not challenge the validity of the
    deportation order described in [§ 1326(a)(1)]
    . . . unless the alien demonstrates that—(1) the
    alien exhausted any administrative remedies
    that may have been available to seek relief
    against the order; (2) the deportation
    proceedings 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.
    Valdez-Novoa contends that the June 11, 1999, removal
    order is invalid because the IJ did not inform Valdez-Novoa
    that he might be eligible for voluntary departure relief. An IJ
    is obligated to inform an alien of his “apparent eligibility” for
    forms of relief such as voluntary departure. See 8 C.F.R.
    § 1240.11(a)(2); see also United States v. Arrieta, 
    224 F.3d 1076
    , 1079 (9th Cir. 2000) (“[W]here the record contains an
    inference that the petitioner is eligible for relief from
    deportation, the IJ must advise the alien of this possibility and
    give him the opportunity to develop the issue.” (internal
    UNITED STATES V. VALDEZ-NOVOA                      11
    quotation marks and citation omitted)). An IJ’s failure to
    inform an alien of his apparent eligibility for voluntary
    departure can serve as the basis for a collateral attack on the
    underlying removal order under § 1326(d). See, e.g., United
    States v. Rojas-Pedroza, 
    716 F.3d 1253
    , 1262 (9th Cir. 2013).
    To challenge the validity of a removal order under
    § 1326(d), the defendant must first demonstrate that he
    “exhausted any administrative remedies that may have been
    available to seek relief against the order.” 8 U.S.C.
    § 1326(d)(1). Where, as here, the defendant argues that “the
    IJ has failed to provide information about apparent eligibility
    for relief, we excuse the alien from demonstrating that the
    alien exhausted any administrative remedies that may have
    been available.” United States v. Vidal-Mendoza, 
    705 F.3d 1012
    , 1015 (9th Cir. 2013) (internal quotation marks and
    citation omitted). Second, the defendant must demonstrate
    that “the deportation proceedings at which the order was
    issued improperly deprived the alien of the opportunity for
    judicial review.” 8 U.S.C. § 1326(d)(2). Valdez-Novoa need
    not make any further showing to satisfy this prong because
    “the [ ] failure to inform an alien regarding ‘apparent
    eligibility’ for relief [ ] deprive[s] the alien of the opportunity
    for judicial review.” 
    Rojas-Pedroza, 716 F.3d at 1262
    (third
    alteration in original) (internal quotation marks and citation
    omitted). Third, the defendant must demonstrate that “the
    entry of the [removal] order was fundamentally unfair.”
    8 U.S.C. § 1326(d)(3). We have held that “[a]n underlying
    removal order is fundamentally unfair if: (1) [a defendant’s]
    due process rights were violated by defects in his underlying
    deportation proceeding, and (2) he suffered prejudice as a
    result of the defects.” United States v. Ubaldo-Figueroa,
    
    364 F.3d 1042
    , 1048 (9th Cir. 2004) (internal quotation marks
    and citation omitted). Our resolution of Valdez-Novoa’s
    12           UNITED STATES V. VALDEZ-NOVOA
    collateral attack on his removal proceedings therefore turns
    on whether the IJ’s failure to advise him of his apparent
    eligibility for voluntary departure relief was (1) a due process
    violation that was (2) prejudicial.
    The government expressly conceded before the district
    court that the IJ’s failure to advise Valdez-Novoa of his
    eligibility for voluntary departure relief was a due process
    violation “in light of later-developing case law.” But the
    government now raises this issue on appeal, arguing that
    Valdez-Novoa was statutorily ineligible for voluntary
    departure because the IJ correctly determined that he had
    been convicted of an aggravated felony. “Issues not
    presented to the district court cannot generally be raised for
    the first time on appeal.” United States v. Robertson, 
    52 F.3d 789
    , 791 (9th Cir. 1994). We may, however, consider an
    issue raised for the first time on appeal if “the issue presented
    is purely one of law and the opposing party will suffer no
    prejudice as a result of the failure to raise the issue in the trial
    court.” United States v. Carlson, 
    900 F.2d 1346
    , 1349 (9th
    Cir. 1990). Nevertheless, we decline to address this issue
    here because we conclude that even if the IJ’s failure to
    advise Valdez-Novoa of his apparent eligibility for voluntary
    departure relief was a violation of due process, he suffered no
    prejudice.
    B. Prejudice
    In order to demonstrate that “the entry of the [removal]
    order was fundamentally unfair,” 8 U.S.C. § 1326(d)(3), the
    defendant must show that “he suffered prejudice as a result of
    the defects” in the removal proceedings. 
    Ubaldo-Figueroa, 364 F.3d at 1048
    ; see also 
    Rojas-Pedroza, 716 F.3d at 1263
    (“Where an IJ failed to advise an alien of his or her apparent
    UNITED STATES V. VALDEZ-NOVOA                    13
    eligibility for relief, the alien must still establish prejudice
    under the second prong of § 1326(d)(3).” (internal quotation
    marks and citations omitted)). Assuming arguendo that
    Valdez-Novoa’s removal proceedings did not comport with
    due process, we hold that Valdez-Novoa was not prejudiced
    by the error.
    1. Defining “prejudice” under § 1326(d)(3)
    The IJ’s failure to advise Valdez-Novoa of his apparent
    eligibility for voluntary departure prejudiced him only if it is
    “plausible” that the IJ would have granted voluntary
    departure relief. See United States v. Cisneros-Resendiz,
    
    656 F.3d 1015
    , 1018 (9th Cir. 2011) (“If the alien alleges that
    the IJ’s failure to provide information about a form of
    potentially available discretionary relief caused a due process
    violation, the alien must show prejudice by establishing that
    it was plausible that the IJ would have granted such relief.”).
    At oral argument, Valdez-Novoa’s counsel posited that
    discretionary relief is “plausible” when “it would not have
    been an abuse of discretion for the IJ to grant relief.” Valdez-
    Novoa’s proposed definition of “plausibility” is contrary to
    our case law. We have held that “establishing ‘plausibility’
    requires more than establishing a mere ‘possibility.’” United
    States v. Barajas-Alvarado, 
    655 F.3d 1077
    , 1089 (9th Cir.
    2011); see also 
    Cisneros-Resendiz, 656 F.3d at 1018
    (requiring the alien to demonstrate that “it was plausible (not
    merely conceivable) that the IJ would have exercised his
    discretion in the alien’s favor” (citation omitted)). We
    reaffirm once more that a defendant is prejudiced under
    § 1326(d)(3) when he shows that it is plausible, rather than
    merely conceivable or possible, that an IJ would have granted
    the relief for which he was apparently eligible. We expressly
    reject the contention that relief is “plausible” whenever an IJ
    14          UNITED STATES V. VALDEZ-NOVOA
    could have granted the relief at issue without abusing his
    discretion. Such a standard is akin to a showing of mere
    possibility or conceivability, which we have plainly held is
    insufficient to satisfy the prejudice prong of § 1326(d)(3).
    See 
    Barajas-Alvarado, 655 F.3d at 1089
    ; 
    Cisneros-Resendiz, 656 F.3d at 1018
    .
    Although the test proffered by Valdez-Novoa lacks
    support in our case law, we wish to clarify a different
    ambiguity concerning how we have allocated the burden to
    show that it is plausible that the IJ would have granted
    discretionary relief. Most of our cases state simply that the
    defendant bears the burden of demonstrating that he was
    prejudiced by the due process violation. See United States v.
    Gomez, No. 11-30262, 
    2014 WL 1623725
    , at *9 (9th Cir.
    Apr. 24, 2014) (“[I]n a collateral attack on the validity of a
    deportation order the defendant bears the burden of proving
    prejudice under § 1326(d)(3). To establish prejudice in this
    context, the defendant must show that it was ‘plausible’ that
    he would have received some form of relief from removal had
    his rights not been violated in the removal proceedings.”
    (citation omitted)); 
    Rojas-Pedroza, 716 F.3d at 1263
    ; Vidal-
    
    Mendoza, 705 F.3d at 1016
    ; United States v. Valdavinos-
    Torres, 
    704 F.3d 679
    , 690 (9th Cir. 2012); United States v.
    Reyes-Bonilla, 
    671 F.3d 1036
    , 1049 (9th Cir. 2012); United
    States v. Melendez-Castro, 
    671 F.3d 950
    , 954 (9th Cir. 2012);
    
    Cisneros-Resendiz, 656 F.3d at 1018
    ; 
    Bajaras-Alvarado, 655 F.3d at 1089
    ; United States v. Arias-Ordonez, 
    597 F.3d 972
    ,
    978 (9th Cir. 2010); United States v. Moriel-Luna, 
    585 F.3d 1191
    , 1196 (9th Cir. 2009); United States v. Calderon-
    Segura, 
    512 F.3d 1104
    , 1108 (9th Cir. 2008); United States
    v. Bahena-Cardenas, 
    411 F.3d 1067
    , 1077 (9th Cir. 2005);
    United States v. Pallares-Galan, 
    359 F.3d 1088
    , 1103 (9th
    Cir. 2004); 
    Ubaldo-Figueroa, 364 F.3d at 1048
    ; United States
    UNITED STATES V. VALDEZ-NOVOA                  15
    v. Ahumada-Aguilar, 
    295 F.3d 943
    , 947 (9th Cir. 2002);
    
    Muro-Inclan, 249 F.3d at 1185
    ; United States v. Garcia-
    Martinez, 
    228 F.3d 956
    , 963 (9th Cir. 2000); 
    Arrieta, 224 F.3d at 1079
    ; United States v. Esparza-Ponce, 
    193 F.3d 1133
    , 1136 (9th Cir. 1999); United States v. Acre-Hernandez,
    
    163 F.3d 559
    , 563 (9th Cir. 1999); United States v. Jimenez-
    Marmolejo, 
    104 F.3d 1083
    , 1086 (9th Cir. 1996); United
    States v. Leon-Leon, 
    35 F.3d 1428
    , 1432 (9th Cir. 1994).
    But in a few of our older cases, we articulated a burden
    shifting scheme, whereby the burden shifts to the government
    to prove that the defendant would not have received
    discretionary relief if the defendant makes a “prima facie
    showing of prejudice.” See United States v. Gonzalez-
    Valerio, 
    342 F.3d 1051
    , 1054 (9th Cir. 2003) (“In order [to]
    successfully to challenge his deportation order, [the
    defendant] must establish that he was prejudiced by the
    failure of the IJ to inform him of the potential for
    discretionary relief. . . . Once [the defendant] makes a prima
    facie showing of prejudice, the burden shifts to the
    government to demonstrate that the procedural violation
    could not have changed the proceedings’ outcome.”); United
    States v. Lopez-Vasquez, 
    1 F.3d 751
    , 756 n.9 (9th Cir. 1993);
    United States v. Gonzalez-Mendoza, 
    985 F.2d 1014
    , 1017
    (9th Cir. 1993); United States v. Cerda-Pena, 
    799 F.2d 1374
    ,
    1379 (9th Cir. 1986).
    We detect no meaningful distinction between our cases
    that use the language of “prima facie showing” and “burden
    shifting” and those that do not. In other words, there is no
    difference between saying that the defendant must “make[] a
    prima facie showing of prejudice,” 
    Gonzalez-Valerio, 342 F.3d at 1054
    , and saying that “the defendant must show
    that it was ‘plausible’ that he would have received some form
    16             UNITED STATES V. VALDEZ-NOVOA
    of relief from removal,” Gomez, 
    2014 WL 1623725
    , at *9.
    We do not read any of our cases to suggest that requiring the
    defendant to make “a prima facie showing” is either more or
    less onerous than requiring the defendant to show that relief
    was “plausible.” Rather, the word “plausibility” describes the
    substantive content of the requisite “prima facie showing.”
    To say that a defendant must “make[] a prima facie showing
    of prejudice,” 
    Gonzalez-Valerio, 342 F.3d at 1054
    , begs the
    question: What must the defendant show in order to satisfy
    this requirement? The answer is that in order to “make a
    prima facie showing of prejudice,” 
    id., the defendant
    must
    “show that it was ‘plausible’ that he would have received
    some form of relief from removal,” Gomez, 
    2014 WL 1623725
    , at *9.1
    1
    To illustrate this point, consider two well-developed areas of the law
    where one party is required to make a “prima facie showing” in order to
    shift the burden to his opponent: the limits on the use of peremptory
    challenges imposed by Batson v. Kentucky, 
    476 U.S. 79
    (1986), and the
    framework for evaluating disparate-treatment claims developed in
    McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    (1973). In the former
    context, we have reasoned that “under Batson, [the defendant] has made
    a prima facie showing” where he “has shown a pattern of strikes that
    raises a plausible inference of discrimination.” Paulino v. Castro,
    
    371 F.3d 1083
    , 1092 (9th Cir. 2004) (emphasis added). In the latter
    context, the Supreme Court has held that its requirement that a complaint
    include “enough facts to state a claim to relief that is plausible on its face”
    is not contrary to its holding that “‘a complaint in an employment
    discrimination lawsuit [need] not contain specific facts establishing a
    prima facie case of discrimination under the framework set forth in
    [McDonnell Douglas].’” Bell Atl. Corp v. Twombly, 
    550 U.S. 544
    ,
    569–70 (2007) (emphasis added) (first alteration in original) (quoting
    Swierkiewicz v. Sorema N.A., 
    534 U.S. 506
    , 508 (2002)). In both
    contexts, demonstrating that relief is “plausible” is part of the requisite
    “prima facie showing.” Put differently, there is nothing inconsistent about
    UNITED STATES V. VALDEZ-NOVOA                         17
    It follows that there is no difference between describing
    the prejudice analysis as a two-part burden shifting inquiry,
    on the one hand, and stating that it is the defendant’s burden
    to show prejudice, on the other hand. Compare Gonzalez-
    
    Valerio, 342 F.3d at 1054
    (“Once [the defendant] makes a
    prima facie showing of prejudice, the burden shifts to the
    government to demonstrate that the procedural violation
    could not have changed the proceedings’ outcome.”) with
    Gomez, 
    2014 WL 1623725
    , at *9 (“[I]n a collateral attack on
    the validity of a deportation order the defendant bears the
    burden of proving prejudice under § 1326(d)(3).”). The
    crucial point is that all of our cases hold that the defendant
    must make the initial showing that he was prejudiced by the
    alleged due process violation. Every case involving the
    prejudice prong of § 1326(d)(3) proceeds in much the same
    way: the defendant cites cases from the courts and the BIA
    where an alien with similar equities was granted the
    discretionary relief at issue, and the government distinguishes
    those cases, cites cases to the contrary, or argues that the
    cases relied on by the defendant are outliers. We have always
    (1) placed the burden on the defendant to show that he was
    prejudiced by the due process violation, (2) evaluated the
    authorities cited by the defendant, (3) compared them to the
    authorities offered by the government, and (4) determined
    whether the defendant has carried his burden to prove that he
    suffered prejudice.
    All of our recent cases have discarded the burden-shifting
    language in favor of the more straightforward statement that
    the defendant bears the burden of proving prejudice under
    saying that the defendant must make a “prima facie showing” in one case
    and saying that the defendant must show that relief is “plausible” in
    another case.
    18           UNITED STATES V. VALDEZ-NOVOA
    § 1326(d)(3). See, e.g., 
    Rojas-Pedroza, 716 F.3d at 1263
    (citing 
    Gonzalez-Valerio, 342 F.3d at 1054
    , for the
    proposition that § 1326(d)(3) “requires the alien to make an
    additional showing and demonstrate ‘plausible grounds’ for
    relief”). We reaffirm that the burden to show prejudice rests
    with the defendant. We now apply this well-established
    approach to the facts of this case and conclude that the IJ’s
    failure to notify Valdez-Novoa of his apparent eligibility for
    voluntary departure did not prejudice him because Valdez-
    Novoa has not shown that it is plausible that he would have
    received such relief.
    2. Application of the § 1326(d)(3) prejudice prong
    We follow a two-step process to determine whether the
    defendant was prejudiced by the IJ’s decision not to inform
    of his apparent eligibility for voluntary departure relief.
    First, we identify the factors relevant to the
    IJ’s exercise of the discretion for the relief
    being sought. Next, we determine whether,
    “in light of the factors relevant to the form of
    relief being sought, and based on the unique
    circumstances of the alien’s own case, it was
    plausible (not merely conceivable) that the IJ
    would have exercised his discretion in the
    alien’s favor.”
    
    Rojas-Pedroza, 716 F.3d at 1263
    (quoting 
    Barajas-Alvarado, 655 F.3d at 1089
    ).
    The factors relevant to an IJ deciding whether to grant
    voluntary departure are the alien’s negative and positive
    equities. See Matter of Gamboa, 14 I. & N. Dec. 244, 248
    UNITED STATES V. VALDEZ-NOVOA                    19
    (BIA 1972); see also 
    Rojas-Pedroza, 716 F.3d at 1264
    –65.
    The negative equities include “the nature and underlying
    circumstances of the deportation ground at issue; additional
    violations of the immigration laws; the existence, seriousness,
    and recency of any criminal record; and other evidence of bad
    character or the undesirability of the applicant as a permanent
    resident.” Matter of Arguelles-Campos, 22 I. & N. Dec. 811,
    817 (BIA 1999). The positive equities “are compensating
    elements such as long residence here, close family ties in the
    United States, or humanitarian needs.” 
    Id. Turning to
    the facts of this case, we first note that Valdez-
    Novoa’s criminal record was recent and serious when he was
    deemed removable in 1999. He had been convicted of two
    felonies involving injury to others: assault likely to cause
    great bodily injury and reckless driving causing great bodily
    injury. Taken together, he was incarcerated for almost three
    years as a consequence of these convictions. He had also
    been convicted of three misdemeanors, including two DUIs.
    Valdez-Novoa’s criminal record reveals that he engaged in a
    pattern of increasingly dangerous and violent conduct over
    the years leading up to his removal proceedings in 1999. His
    inability to abide by the law also affected the functioning of
    the immigration system. The INS served Valdez-Novoa with
    a notice to appear after he was convicted of felony assault
    likely to cause great bodily injury in 1996. The agency
    permitted him to post bond rather than remain in detention
    while his removal proceedings were pending even though he
    resided in the U.S. without documentation and had already
    been convicted of three misdemeanors and one felony. But
    Valdez-Novoa could not attend his scheduled hearing before
    the IJ because he wound up back in jail. He was eventually
    convicted of felony reckless driving causing great bodily
    20          UNITED STATES V. VALDEZ-NOVOA
    injury and served part of his two-year prison sentence before
    the IJ was able to conclude his removal proceedings.
    On the other side of the ledger, Valdez-Novoa could have
    presented meaningful positive equities. He arrived in the
    U.S. as a child, and by 1999 his parents had obtained status as
    lawful permanent residents. He had eight younger siblings
    who also lived in California, some or all of whom were either
    citizens or lawful permanent residents at the time he was
    deemed removable. When he was not incarcerated, Valdez-
    Novoa earned a diploma from an alternative high school and
    a welding certificate from a college and worked various jobs.
    Valdez-Novoa cites a number of BIA decisions in support
    of his position that it is plausible that an IJ would have
    granted voluntary departure to an alien with his mix of
    negative and positive equities. His best case is probably In re
    Gonzales-Figeroa, 
    2006 WL 729784
    (BIA Feb. 10, 2006).
    There, the Board concluded that the IJ did not abuse his
    discretion in deciding to grant voluntary departure to an alien
    who had four convictions for assault—one of which had led
    to a six-month prison term—along with a conviction for
    resisting arrest. 
    Id. at *1.
    Gonzales-Figeroa presented
    compelling positive equities that counterbalanced his criminal
    record. He had resided in the U.S. for fifteen years at the
    time of his removal proceedings, his mother was a lawful
    permanent resident who relied on him for financial support,
    his sister and nieces were citizens, his mother had already
    filed a visa petition on his behalf, and he had joined
    Alcoholics Anonymous while in prison and stopped drinking.
    
    Id. On balance,
    Valdez-Novoa’s criminal history was
    arguably more serious given the risk of severe injury or death
    posed by his two felony offenses, the length of his prison
    terms, and the absence of record evidence that he was
    UNITED STATES V. VALDEZ-NOVOA                    21
    reforming the behaviors that contributed to his recidivism.
    Both Gonzales-Figeroa and Valdez-Novoa offered similarly
    meaningful positive equities, namely lengthy residence in the
    U.S. and close ties to family members residing lawfully in the
    U.S.
    Valdez-Novoa also relies on In re Sanabria-Dominguez,
    
    2010 WL 2601495
    (BIA May 25, 2010). There, the Board,
    applying de novo review, reversed the IJ’s determination that
    the alien was not entitled to voluntary departure. 
    Id. at *1.
    Sanabria-Dominguez’s negative equities included “his history
    of repeated illegal entries to the United States with the
    assistance of smugglers, record of previous voluntary returns,
    failure to file tax returns, and driving without a license.” 
    Id. And his
    positive equities included “his residence in the
    United States, the assistance that he has provided his United
    States citizen wife with regard to her addiction and medical
    condition, his United States citizen son, and his contributions
    to his community, including his work as a drug counselor and
    the assistance he has provided his church.” 
    Id. Unlike Valdez-Novoa,
    Sanabria-Dominguez had no convictions for
    violent conduct, let alone multiple felony convictions for
    inflicting injury on others and multiple convictions for
    placing the lives of others at risk by driving under the
    influence. Sanabria-Dominguez’s positive equities were
    arguably more compelling as well, since he not only had ties
    to family members residing lawfully in the U.S., but was
    responsible for supporting his wife and child, both of whom
    were U.S. citizens.
    The other cases referenced by Valdez-Novoa are farther
    afield. In Matter of Magana, 17 I. & N. Dec. 111 (BIA
    1979), the Board held that the alien was entitled to voluntary
    departure even though he was married to a woman in Mexico
    22          UNITED STATES V. VALDEZ-NOVOA
    when he married another woman in the U.S. and then applied
    for a visa. 
    Id. at 112,
    115. But there is no indication that
    Magana was saddled with other negative equities such as a
    lengthy criminal history involving violent conduct. And in
    Matter of Battista, 19 I. & N. Dec. 484 (BIA 1987), the Board
    did not disturb the IJ’s decision to grant voluntary departure
    to an alien who had been convicted of breaking and entering,
    grand theft, and possession of criminal tools. 
    Id. at 484–85.
    Battista’s negative equities are less impactful because his
    convictions arose from a single incident rather than a pattern
    of ongoing and increasingly serious misconduct and they did
    not involve violence toward others. And Battista, like
    Valdez-Novoa, presented compelling positive equities
    because he was married to a U.S. citizen who was pregnant
    with his child. 
    Id. Although Valdez-Novoa
    does not cite the
    case, we note that he might draw some support from In re
    Moreno Bacahui, 
    2010 WL 5635608
    (BIA Dec. 30, 2010).
    There, the BIA, applying de novo review, reversed the IJ’s
    decision to deny the alien’s request for voluntary departure.
    
    Id. at *1.
    An INS report stated that Moreno Bacahui was
    found to be in possession of 1.5 grams of cocaine at a port of
    entry. 
    Id. at *2.
    But there was no indication that Moreno
    Bacahui was ever charged or convicted of the alleged drug
    offense, which had occurred seven years before his removal
    proceedings. The only infraction on his record involved
    failing to appear in state court after a traffic incident. 
    Id. Moreno Bacahui
    was also married to a U.S. citizen who had
    filed a visa petition on his behalf. 
    Id. Once again,
    there is a
    wide gulf between the negative equities of the alien who was
    granted voluntary departure and Valdez-Novoa’s negative
    equities at the time of his removal proceedings.
    We do not think the cases cited by our dissenting
    colleague show that it is plausible, rather than merely
    UNITED STATES V. VALDEZ-NOVOA                   23
    possible or conceivable, that Valdez-Novoa would have
    received voluntary departure relief. In In re Pineda-
    Castellanos, 
    2005 WL 3833024
    (BIA Nov. 16, 2005), the
    alien had “convictions for illegal entry, battery, drunkenness,
    threatening, a second battery, and driving under the
    influence.” 
    Id. at *1.
    Valdez-Novoa similarly had been twice
    convicted of driving under the influence, but he was also
    saddled with convictions for two felonies that caused serious
    injury to others. Furthermore, the Board observed in Pineda-
    Castellanos that “[g]iven the respondent’s criminal record, a
    grant of voluntary departure by the Immigration Judge was
    more than generous.” 
    Id. at *2
    (emphasis added). The
    Board’s intimation that Pineda-Castellanos represents the
    outer bound of voluntary departure relief does not lead us to
    believe that it is plausible that Valdez-Novoa would have
    received the same relief despite his more serious criminal
    record. We are likewise unmoved by cases where the Board
    has merely agreed to remand to the IJ to consider whether to
    grant voluntary departure to aliens with fewer negative
    equities than Valdez Novoa because such remands tell us
    little about the Board’s standards or practices. See In re
    Tipaz-Poncio, 
    2014 WL 1401572
    , at *1 (BIA Mar. 19, 2014)
    (remanding to the IJ to consider whether to grant voluntary
    departure to an alien who had been convicted of “Class A”
    assault with family violence and sentenced to forty-five days
    in prison); In re Toledo-Alvarado, 
    2014 WL 1278406
    , at *1
    (BIA Feb. 26, 2014) (remanding to the IJ to consider whether
    to grant voluntary departure to an alien who had been
    convicted of attempted theft and sentenced to one year in
    prison); In re Villalongja Mante, 
    2007 WL 1676929
    , at *1–3
    (BIA May 18, 2007) (remanding to the IJ to consider whether
    to grant voluntary departure to an alien who had been
    convicted of sexual battery and sentenced to “a relatively
    brief period of felony probation”); In re Reyes-Jiminez, 2004
    24          UNITED STATES V. VALDEZ-NOVOA
    WL 2418597, at *2 (BIA Oct. 4, 2004) (remanding to the IJ
    to consider whether to grant voluntary departure to an alien
    who had been sentenced to ten days in prison for disorderly
    conduct, thirty-one days in prison for second-degree burglary,
    and one year in prison for driving under the influence). We
    are equally unpersuaded by cases where the Board has
    remanded to the IJ to consider whether to grant voluntary
    departure to lawful permanent residents with criminal
    histories. See In re Guillermo Ramirez, 
    2005 WL 698425
    , at
    *1–2 (BIA Mar. 8, 2005) (remanding to the IJ to consider
    whether to grant voluntary departure to a lawful permanent
    resident who did not have “any recent criminal convictions”
    but who had “committed at least two serious crimes,
    involving controlled substances and robbery, provided a false
    name to law enforcement authorities at least once, stealing
    the identity of a friend in the process, and was arrested on a
    different occasion for driving under the influence”); In re
    Hernandez-Barreto, 
    2004 WL 2943517
    , at *1–2 (BIA Oct.
    29, 2004) (remanding to the IJ to consider whether to grant
    voluntary departure to a lawful permanent resident who had
    been convicted of inflicting corporal injury upon a spouse,
    possession of a controlled substance, and driving under the
    influence, for which he received a 150-day suspended
    sentence and probation). Finally, our position is bolstered
    rather than undercut by the citation to In re Ortiz-Bustos,
    
    2014 WL 1652408
    (BIA Apr. 10, 2014), where the Board
    affirmed the IJ’s denial of voluntary departure to an alien who
    had been twice convicted of driving under the influence. 
    Id. at *1.
    Our survey of BIA decisions fails to reveal a single case
    where an IJ granted voluntary departure to an alien with a
    criminal history as recent and serious as the record compiled
    by Valdez-Novoa. An IJ would have considered the fact that
    UNITED STATES V. VALDEZ-NOVOA                    25
    the conduct that led to Valdez-Novoa’s two felony
    convictions could have resulted in serious injury or death.
    See Arguelles-Campos, 22 I. & N. Dec. at 817 (instructing IJs
    to consider, among other things, “the existence, seriousness,
    and recency of any criminal record; and other evidence of bad
    character or the undesirability of the applicant as a permanent
    resident”). His two convictions for driving under the
    influence would have also weighed heavily on the IJ even
    though they were misdemeanors. See In re Romero-Reyes,
    
    2010 WL 3780635
    , at *1 (BIA Sept. 9, 2010) (“We note that
    driving under the influence is a very dangerous crime which
    may cause serious injury or death to innocent bystanders.”).
    The fact that Valdez-Novoa twice violated the conditions of
    his parole after his first stint in prison would have likewise
    cautioned the IJ against granting voluntary departure relief.
    See 
    id. (“We are
    further troubled by the fact that [the alien]
    apparently violated his probation more than once.”). And the
    IJ would have likely been influenced by the fact that Valdez-
    Novoa’s conviction for felony reckless driving occurred after
    the INS initiated removal proceedings against him. See In re
    Abrahan Castillo, 
    2009 WL 638918
    , at *1 (BIA Feb. 23,
    2009) (“The Immigration Judge denied voluntary departure
    in this case due to the respondent’s history of criminal
    offenses, which includes a violent offense that occurred after
    the respondent was placed in proceedings.”).
    Of the cases available to us, the facts of Gonzales-Figeroa
    are the most difficult to distinguish given the alien’s similarly
    lengthy criminal record. But the existence of a single case
    that is arguably on point means only that it is “possible” or
    “conceivable” that a similarly situated alien would be
    afforded voluntary departure. That is plainly insufficient to
    warrant a finding that the defendant was prejudiced by the
    IJ’s failure to advise him of his apparent eligibility for
    26          UNITED STATES V. VALDEZ-NOVOA
    voluntary departure. See 
    Barajas-Alvarado, 655 F.3d at 1089
    (“[E]stablishing ‘plausibility’ requires more than establishing
    a mere ‘possibility.’”); 
    Cisneros-Resendiz, 656 F.3d at 1018
    (requiring the alien to demonstrate that “it was plausible (not
    merely conceivable) that the IJ would have exercised his
    discretion in the alien’s favor” (citation omitted)).
    We do not discount the fact that Valdez-Novoa had spent
    most of his life in the U.S. and that his parents and siblings
    lived in the country. Although there is no indication that
    Valdez-Novoa was married or had children in 1999, we
    acknowledge that the presence of family members who are
    citizens or lawful permanent residents is an important
    positive equity. Yet it is hardly dispositive. On numerous
    occasions, the BIA has affirmed an IJ’s decision to deny
    voluntary departure relief where the alien claimed equally
    compelling ties to the U.S. See, e.g., In re Velasquez-Garcia,
    
    2012 WL 1495500
    , at *1 (BIA Mar. 22, 2012) (denying
    voluntary departure where the alien had been convicted of
    possession of cocaine even though “several of his family
    members are United States citizens”); In re Garcia-Marquez,
    
    2012 WL 911851
    , at *1 (BIA Mar. 9, 2012) (denying
    voluntary departure where the alien had been arrested for
    unlawful animal fighting and alien smuggling and had been
    convicted of DUI despite “his long residence in the United
    States [and] his family and community ties here”); In re
    Posadas-Posadas, 
    2012 WL 371659
    , at *1 (BIA Jan. 18,
    2012) (denying voluntary departure where the alien had been
    arrested for DUI and two subsequent driving-related offenses
    despite his “family ties and length of stay in the United
    States”); In re Ponce-Velez, 
    2011 WL 1570481
    , at *1–2 (BIA
    Mar. 31, 2011) (denying voluntary departure where the
    defendant had been convicted of DUI and driving without a
    license and failed to appear in court for six years despite the
    UNITED STATES V. VALDEZ-NOVOA                    27
    fact that he had “been in the United States for 13 years . . .
    [and] has 3 United States citizen children”).
    We conclude that Valdez-Novoa has not shown that it is
    plausible that an IJ would have granted his request for
    voluntary departure in light of his negative and positive
    equities when he was deemed removable on June 11, 1999,
    even if he had not been deemed statutorily ineligible for
    voluntary departure as a consequence of the IJ’s
    determination that he had been convicted of an aggravated
    felony. As a result, Valdez-Novoa was not prejudiced by the
    IJ’s failure to advise him of his apparent eligibility for
    voluntary departure relief. It follows that the entry of the IJ’s
    order was not “fundamentally unfair” under § 1326(d)(3).
    The 1999 removal order is thus a valid predicate to a
    conviction for attempted illegal entry under § 1326(a).
    III
    Valdez-Novoa’s second argument on appeal is that the
    district court erred by denying his motion for judgment of
    acquittal on the basis that the government did not provide
    evidence sufficient to corroborate his confession under the
    corpus delicti rule. We review the denial of a motion for
    judgment of acquittal de novo, and “ask whether, after
    viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt.”
    United States v. Corona-Garcia, 
    210 F.3d 973
    , 978 (9th Cir.
    2000) (internal quotation marks and citation omitted).
    28          UNITED STATES V. VALDEZ-NOVOA
    A. Attempted Illegal Reentry and the Corpus Delicti Rule
    In United States v. Gracidas-Ulibarry, 
    231 F.3d 1188
    (9th
    Cir. 2000) (en banc), we held that
    the elements of the crime of attempted illegal
    reentry into the United States under 8 U.S.C.
    § 1326 are: (1) the defendant had the purpose,
    i.e., conscious desire, to reenter the United
    States without the express consent of the
    Attorney General; (2) the defendant
    committed an overt act that was a substantial
    step towards reentering without that consent;
    (3) the defendant was not a citizen of the
    United States; (4) the defendant had
    previously been lawfully denied admission,
    excluded, deported or removed from the
    United States; and (5) the Attorney General
    had not consented to the defendant’s
    attempted reentry.
    
    Id. at 1196.
    Valdez-Novoa confessed to all of the elements
    of the offense in a videotaped interview with DHS Criminal
    Enforcement Officer Sue Curtis that was shown to the jury at
    trial. Valdez-Novoa told Curtis that he was attempting to
    enter the U.S. without requesting permission to do so. He
    confessed that he had purchased an identification card bearing
    another man’s name to use to enter the country. He also
    acknowledged that he had previously been removed on
    several occasions. And, in Section 
    II, supra
    , we confirmed
    that the 1999 removal order was lawful under § 1326(d).
    But Valdez-Novoa’s confession standing alone is not
    necessarily sufficient to support his conviction. “Although
    UNITED STATES V. VALDEZ-NOVOA                    29
    the government may rely on a defendant’s confession to meet
    its burden of proof, it has nevertheless been long established
    that, in order to serve as the basis for conviction, the
    government must also adduce some independent
    corroborating evidence.” 
    Corona-Garcia, 210 F.3d at 978
    .
    This is the contemporary iteration of the common law corpus
    delicti rule. In United States v. Lopez-Alvarez, 
    970 F.2d 583
    (9th Cir. 1992), we considered the ongoing vitality of the
    corpus delicti principle in light of a trio of decisions by the
    Supreme Court: Opper v. United States, 
    348 U.S. 84
    (1954);
    Smith v. United States, 
    348 U.S. 147
    (1954); and Wong Sun
    v. United States, 
    371 U.S. 471
    (1963). We held that these
    cases stand for the proposition that “the state no longer need
    introduce independent, tangible evidence supporting every
    element of the corpus delicti. Instead, the state is required to
    support independently only the gravamen of the offense—the
    existence of the injury that forms the core of the offense and
    a link to a criminal actor—with tangible evidence.” Lopez-
    
    Alvarez, 970 F.2d at 591
    .
    B. The Gravamen of Attempted Illegal Reentry
    Pursuant to our decision in Lopez-Alvarez, we must first
    identify the gravamen of the offense. In Corona-Garcia, we
    considered whether the government introduced sufficient
    independent evidence of the corpus delicti in a case where the
    defendant was convicted of illegal entry in violation of
    § 1326(a). 
    Corona-Garcia, 210 F.3d at 977
    –79. We held
    that “[t]he gravamen of the offense in this case—that is to say
    the conduct at the core of the offense—is entry.” 
    Id. at 978.
    We “expressly reject[ed] [the defendant’s] contention that
    ‘illegal entry’ is the gravamen of the offense.” 
    Id. at 978
    n.3.
    This case differs from Corona-Garcia because Valdez-Novoa
    was convicted of attempted illegal entry, rather than the
    30           UNITED STATES V. VALDEZ-NOVOA
    completed offense. Unlike Corona-Garcia, who was serving
    time in a California state prison for an unrelated offense when
    the government concluded that he had illegally entered the
    U.S., Valdez-Novoa never made it past the San Ysidro Port
    of Entry. Both attempted illegal reentry and the completed
    version of the offense are prohibited by § 1326(a). But they
    differ in one important respect: attempted illegal reentry is a
    specific intent crime, while the completed offense is not. See
    
    Gracidas-Ulibarry, 231 F.3d at 1191
    –92 (“We hold that the
    attempt prong of § 1326 incorporates the well-established
    common law meaning of ‘attempt’ and requires proof of a
    specific intent to enter illegally.”); United States v. Flores-
    Villar, 
    536 F.3d 990
    , 999 (9th Cir. 2008) (“Attempted illegal
    entry . . . is a specific intent crime, but . . . illegal reentry and
    being found in the United States is not.”). Because the
    government must introduce “proof of a specific intent to enter
    illegally,” 
    Gracidas-Ulibarry, 231 F.3d at 1192
    , the
    gravamen of the offense is attempted illegal entry rather than
    attempted entry.
    C. Evidence Corroborating Valdez-Novoa’s Confession
    We apply a two-pronged test to determine whether
    sufficient evidence corroborates Valdez-Novoa’s confession:
    [F]irst, although the state need not introduce
    independent evidence of the corpus delicti in
    conformance with the traditional test, it must
    introduce sufficient evidence to establish that
    the criminal conduct at the core of the offense
    has occurred. Second, it must introduce
    independent evidence tending to establish the
    trustworthiness of the admissions, unless the
    UNITED STATES V. VALDEZ-NOVOA                   31
    confession is, by virtue of             special
    circumstances, inherently reliable.
    
    Lopez-Alvarez, 970 F.2d at 592
    .
    With respect to the first prong, Valdez-Novoa argues that
    his presence in secondary screening at the San Ysidro Port of
    Entry does not corroborate his confession that he was
    attempting to enter the U.S. without permission. An alien
    could wind up in secondary screening even though he lacked
    the specific intent to enter the U.S. without permission. For
    example, he might approach a port of entry to seek asylum,
    or he might be under the mistaken assumption that he has
    been granted permission to reenter.             Under those
    circumstances, the alien would not have committed the
    gravamen of the offense of attempted illegal entry in violation
    of § 1326(a). See 
    Gracidas-Ulibarry, 231 F.3d at 1194
    .
    Valdez-Novoa is correct that his presence in secondary
    screening, standing alone, does not prove that he was
    attempting to reenter the U.S. without permission.
    But the corpus deliciti rule does not require the
    government to introduce evidence that would be
    independently sufficient to convict the defendant in the
    absence of the confession. Rather, it requires evidence
    sufficient to corroborate the defendant’s confession. See
    
    Smith, 348 U.S. at 156
    (“All elements of the offense must be
    established by independent evidence or corroborated
    admissions, but one available mode of corroboration is for the
    independent evidence to bolster the confession itself and
    thereby prove the offense ‘through’ the statements of the
    accused.”); 
    Corona-Garcia, 210 F.3d at 979
    (“Although it is
    true that the sum total of this evidence might well be
    insufficient, standing alone, to prove entry, we do not read
    32          UNITED STATES V. VALDEZ-NOVOA
    Opper or Lopez-Alvarez to require such absolute proof.
    Indeed, Opper and Lopez-Alvarez require corroboration of the
    defendant's confession—that is to say evidence that fortifies,
    augments, or supports it—from which a jury may infer that
    the defendant's confession was a trustworthy admission to
    core conduct that actually occurred.”); Thomas v. United
    States, 
    370 F.2d 621
    , 623 n.3 (9th Cir. 1967) (“[I]n those
    cases where the crime involves no tangible corpus delicti, the
    corroborative evidence need show no more than the
    trustworthiness of the admission or confession—it need not
    show the actual commission of the crime.”).
    The government introduced ample independent evidence
    that corroborates Valdez-Novoa’s statement that he
    committed the gravamen of the offense of attempted illegal
    reentry. First, Valdez-Novoa confessed that he had been
    removed to Mexico one month before he attempted to reenter
    the U.S. At trial, Customs and Border Patrol Officer Bianca
    Marcel testified that, according to Valdez-Novoa’s
    immigration file, he was removed to Mexico on January 18,
    2011. The warrant of removal in Valdez-Novoa’s file was in
    fact signed on January 18, 2011. That is almost exactly one
    month before he was detained while attempting to enter the
    U.S. at the San Ysidro Port of Entry on February 16, 2011.
    Valdez-Novoa also confessed that he was first ordered
    removed in 1999 in proceedings that occurred in San
    Francisco. Officer Marcel testified that, according to Valdez-
    Novoa’s immigration file, he was deemed removable on June
    11, 1999, and removed to Mexico on June 15, 1999. The
    warrant of removal in Valdez-Novoa’s file reflects the same
    information, and the IJ’s decision was issued in San Francisco
    on June 11, 1999. Finally, Valdez-Novoa confessed that he
    had not applied for permission to return to the U.S. Officer
    Marcel testified that an alien can request permission to
    UNITED STATES V. VALDEZ-NOVOA                   33
    reenter the U.S., but that Valdez-Novoa’s immigration file
    revealed that he had not done so. The documentary evidence
    is indeed devoid of any indication that Valdez-Novoa
    requested permission to reenter the U.S.
    All of this “independent evidence [ ] bolster[s] the
    confession itself and thereby prove[s] the offense ‘through’
    the statements of the accused,” 
    Smith, 348 U.S. at 156
    , by
    showing that Valdez-Novoa was attempting to enter the U.S.
    without permission after having been previously removed.
    We relied on the same kind of corroborative evidence in
    Lopez-Alvarez. For example, we explained that “the details
    of the crimes provided by the defendant are verified by
    independent evidence” because the defendant confessed to
    using iron pipes to beat the victim, which was “consistent
    with the condition of the body.” 
    Lopez-Alvarez, 970 F.2d at 593
    . The defendant also discussed a tape recording of an
    exchange between the victim and several other men. 
    Id. The government
    introduced the recording, “and its contents
    matched the defendant’s general description.” 
    Id. Likewise, the
    details of Valdez-Novoa’s confession matched the record
    evidence introduced by the government. As in Lopez-
    Alvarez, “we believe that the admissions were supported by
    credible evidence, that a jury would be substantially justified
    in believing them, and that they were therefore sufficiently
    reliable to support a conviction.” 
    Id. With respect
    to the second prong of the Lopez-Alvarez
    inquiry, we conclude that the government “introduce[d]
    independent evidence tending to establish the trustworthiness
    of the admissions.” 
    Id. at 592.
    As noted, Officer Marcel’s
    testimony concerning Valdez-Novoa’s immigration file and
    the contents of the file itself confirmed the accuracy of the
    statements that Valdez-Novoa made to Officer Curtis at the
    34          UNITED STATES V. VALDEZ-NOVOA
    San Ysidro Port of Entry. The same evidence that
    corroborates Valdez-Novoa’s confession to having committed
    the gravamen of the offense also verifies the “trustworthiness
    of the admissions.” 
    Id. We have
    previously relied on more
    attenuated corroborating evidence in deeming a confession
    trustworthy under the second prong of the Lopez-Alvarez
    analysis. In Corona-Garcia, we reasoned that the defendant’s
    confession that he reentered the U.S. at the Calexico Port of
    Entry was corroborated by the fact that he had been
    previously removed through the same port of entry. Corona-
    
    Garcia, 210 F.3d at 979
    . Here, the independent evidence
    introduced by the government matched very specific details
    offered by Valdez-Novoa about his immigration history
    during his interview with Officer Curtis. Valdez-Novoa’s
    confession also included specific details about how he used
    another man’s identification to attempt to enter the country
    without permission, including the name of the woman who
    sold him the identification and how he intended to pay her
    after crossing. The specificity of his account further bolsters
    its trustworthiness by making it even more implausible that
    Valdez-Novoa found himself in secondary screening without
    intending to reenter the U.S. without permission.
    Furthermore, the confession in this case can be considered
    “inherently reliable,” 
    Lopez-Alvarez, 970 F.2d at 592
    ,
    because it was videotaped, voluntary, and occurred after
    Officer Curtis advised Valdez-Novoa of his Miranda rights.
    At bottom, the corpus delicti doctrine’s “purpose is to prevent
    errors in convictions based upon untrue confessions alone” in
    light of the reality that “[c]onfessions may be unreliable
    because they are coerced or induced.” 
    Smith, 348 U.S. at 153
    (quotation marks and citation omitted).            Where the
    government complies with all of the procedural protections
    afforded the accused and the defendant’s videotaped
    UNITED STATES V. VALDEZ-NOVOA                   35
    statement is shown to the jury, there is no elevated risk that
    the confession was the product of coercion or that the
    defendant’s words were misconstrued. The corpus delicti
    rule is not inevitably satisfied whenever a confession is not
    tainted by a constitutional violation or any indicia of undue
    coercion. The government is still obligated to “introduce
    sufficient evidence to establish that the criminal conduct at
    the core of the offense has occurred” in order to satisfy the
    first prong of the Lopez-Alvarez inquiry. But the fact that the
    confession is recorded, voluntary, and the result of an
    interrogation that is conducted in a manner consistent with
    the constitutional protections afforded the accused supports
    a determination that it is “inherently reliable” under Lopez-
    Alvarez’s second prong.
    We conclude that the government introduced sufficient
    independent evidence to corroborate Valdez-Novoa’s
    confession to attempting to enter the U.S. without permission
    after having been previously removed. Because the evidence
    adduced at trial satisfied the corpus delicti doctrine, the
    district court correctly denied Valdez-Novoa’s motion for
    judgment of acquittal.
    IV
    We affirm the district court’s judgment. First, we hold
    that even assuming arguendo that Valdez-Novoa’s removal
    proceedings did not comport with due process, he was not
    prejudiced by the error because he has not shown that it is
    plausible that an IJ would have granted a request for
    voluntary departure in light of his negative and positive
    equities at the time of the removal proceedings. Because
    Valdez-Novoa was not prejudiced by the presumed error, the
    removal order was not “fundamentally unfair” under
    36          UNITED STATES V. VALDEZ-NOVOA
    § 1326(d)(3). Second, we conclude that the government
    introduced ample independent evidence corroborating
    Valdez-Novoa’s confession to attempting to enter the U.S.
    without permission after having been previously removed to
    satisfy the corpus delicti rule. The district court correctly
    denied both Valdez-Novoa’s motion to dismiss the indictment
    and his motion for judgment of acquittal. The judgment of
    the district court is AFFIRMED.
    Judge McKEOWN, Circuit Judge, dissenting:
    I respectfully dissent. As the majority notes, Valdez-
    Novoa’s case turns on whether the Immigration Judge’s
    (“IJ’s”) failure to advise him of his apparent eligibility for
    voluntary departure was a due process violation and whether
    that violation was prejudicial. The government earlier
    conceded that there was a due process violation. I write
    separately because the majority elevates our benchmark for
    prejudice, the “plausibility” inquiry, to the higher standard of
    either preponderance or probability. Because it is plausible
    that the IJ would have exercised discretion to grant voluntary
    departure, I would reverse the district court’s judgment.
    Before the district court, the government conceded that
    there was a “due process violation, in light of
    later–developing case law,” and focused its argument solely
    on the prejudice issue. The court implicitly accepted the
    violation as conceded, and it too addressed only prejudice.
    The government has now entirely changed its position, and
    maintains on appeal that there was no due process violation
    in the earlier proceedings. Fortunately, the majority has
    chosen not to countenance that argument.
    UNITED STATES V. VALDEZ-NOVOA                           37
    However, the majority concludes that Valdez-Novoa was
    not prejudiced by the due process violation. I disagree with
    this conclusion. To establish prejudice, Valdez-Novoa “does
    not have to show that he actually would have been granted
    relief. Instead, he must only show that he had a ‘plausible’
    ground for relief from deportation.” United States v. Ubaldo-
    Figueroa, 
    364 F.3d 1042
    , 1048 (9th Cir. 2004) (quoting
    United States v. Arrieta, 
    224 F.3d 1076
    , 1079 (9th Cir.
    2000)).1
    Although our cases reference the “plausibility” standard,
    we have yet to define it with precision. We have set a floor:
    “establishing ‘plausibility’ requires more than establishing a
    mere ‘possibility.’” United States v. Barajas-Alvarado, 
    655 F.3d 1077
    , 1089 (9th Cir. 2011). We have also explained, in
    the context of a § 212(h) waiver, that while the evidence did
    not guarantee a waiver, “it provide[d] the ‘something more’
    that ma[de] it plausible.” 
    Arrieta, 224 F.3d at 1082
    –83. While
    citing earlier cases, the majority fails to articulate an actual
    plausibility standard. I agree with the majority that the
    standard is not, as Valdez-Novoa advocates, whether it would
    have been an abuse of discretion for an IJ to grant voluntary
    departure. But neither do our cases require a petitioner to find
    a case that is “on all fours” with his own to demonstrate
    plausibility. That would elevate our plausibility standard to a
    probability standard.
    1
    Other circuits have adopted different standards for demonstrating
    prejudice. See, e.g., United States v. Charleswell, 
    456 F.3d 347
    , 362 n.17
    (3d Cir. 2006) (adopting a “reasonable likelihood” standard); United
    States v. Aguirre-Tello, 
    353 F.3d 1199
    , 1209 (10th Cir. 2004) (same);
    United States v. Copeland, 
    376 F.3d 61
    , 74 (2d Cir. 2004) (adopting a
    “reasonable likelihood” or “reasonable probability” standard).
    38           UNITED STATES V. VALDEZ-NOVOA
    Two Supreme Court decisions underscore that the
    plausibility bar is low and, at the very least, that it does not
    rise to the level of “probability.” The Court’s formulation in
    Armour v. City of Indianapolis is instructive: a “plausible
    reason” is one in which “there is any reasonably conceivable
    state of facts that could provide a rational basis for the
    classification.” 
    132 S. Ct. 2073
    , 2080 (2012) (internal citation
    and quotation marks omitted). Similarly, in Ashcroft v. Iqbal,
    the Court specified that “[t]he plausibility standard is not akin
    to a ‘probability requirement,’ but it asks for more than a
    sheer possibility that a defendant has acted unlawfully.”
    
    556 U.S. 662
    , 678 (2009). Considering the Supreme Court’s
    formulation coupled with our precedent, I believe that our
    “plausibility” standard is best understood as more than a mere
    possibility but less than a probability: in short, as “reasonably
    conceivable or possible.”
    In considering whether to grant voluntary departure,
    immigration judges are required, as the majority
    acknowledges, to “weigh favorable and unfavorable factors.”
    Campos-Granillo v. INS, 
    12 F.3d 849
    , 852 (9th Cir. 1993).
    Favorable factors include
    family ties within the United States; residence
    of long duration in this country, particularly if
    residence began at a young age; hardship to
    the petitioner or petitioner’s family if relief is
    not granted; service in the United States
    armed forces; a history of employment; the
    existence of business or property ties;
    evidence of value and service to the
    UNITED STATES V. VALDEZ-NOVOA                           39
    community; proof of rehabilitation if a
    criminal record exists; and other evidence
    attesting to good character.
    
    Id. at 852
    n.8.
    Valdez-Novoa met a number of these criteria in 1999. At
    that time, Valdez-Novoa had a plausible claim for relief based
    on his arrival in the United States as a nine-year-old boy and
    his continuous residence for sixteen years between his arrival
    and deportation in 1999; his three U.S. citizen siblings, his
    mother and father who held legal permanent resident (“LPR”)
    status and his five additional siblings, all of whom ultimately
    gained legal status; and his educational certification as a
    welder and his extensive employment history as a welder,
    field worker, and fence repairer.2
    To be sure, Valdez-Novoa has an extensive criminal
    history, much of it stemming directly from his past abuse of
    alcohol. But the BIA has supported voluntary departure, or
    remanded to the IJ to consider whether to grant voluntary
    departure, for aliens with extensive criminal records,
    including alcohol-related crimes. The BIA has done so in
    cases involving, among others, six criminal convictions
    including battery, drunkenness, threatening, and driving
    under the influence, In re Pineda-Castellanos, 
    2005 WL 3833024
    (BIA Nov. 16, 2005); attempted theft, In re Toledo-
    Alvarado, 
    2014 WL 1278406
    (BIA Feb. 26, 2014); “Class A”
    assault with family violence, In re Tipaz-Poncio, 
    2014 WL 2
        Interestingly, though not part of a retrospective analysis, had the IJ
    taken a chance on Valdez-Novoa, it would have turned out to be a good
    one. Valdez-Novoa has been sober since 2007, and now has a U.S. citizen
    wife and three citizen children.
    40          UNITED STATES V. VALDEZ-NOVOA
    1401572 (BIA Mar. 19, 2014); two convictions for driving
    while intoxicated, one “recent,” In re Ortiz-Bustos, 
    2014 WL 1652408
    (BIA Apr. 10, 2014); four convictions for assault, a
    conviction for resisting arrest, and numerous arrests,
    purportedly as a result of alcohol abuse, In re. Gonzales-
    Figeroa, 
    2006 WL 729784
    (BIA Feb. 10, 2006); a conviction
    for sexual battery, In re Villalongja Mante, 
    2007 WL 1676929
    (BIA May 18, 2007); convictions for “two serious
    crimes[] involving controlled substances and robbery” and an
    arrest for driving under the influence, In re Guillermo
    Ramirez, 
    2005 WL 698425
    (BIA Mar. 8, 2005); convictions
    for domestic violence, possession of a controlled substance,
    and driving under the influence, In re Hernandez-Barreto,
    
    2004 WL 2943517
    (BIA Oct. 29, 2004); and convictions for
    driving under the influence, burglary, and disorderly conduct,
    In re Reyes-Jiminez, 
    2004 WL 2418597
    (BIA Oct. 4, 2004).
    These cases underscore the wide range of cases in which the
    BIA has determined that it was appropriate to consider the
    exercise of discretion. They fall squarely in the category of
    plausible relief. The majority’s backhanded dismissal of these
    cases simply underscores that it is elevating the plausibility
    standard to one of preponderance or probability.
    I highlight cases involving alcohol and violence like
    battery or domestic violence to illustrate that the BIA has
    exercised its discretion to grant voluntary departure in a wide
    range of cases involving criminal histories that equal or
    exceed that of Valdez-Novoa. Of course, we cannot know for
    certain whether the BIA would have done so here, but this is
    not our charge. The question before us is not whether Valdez-
    Novoa would probably or inevitably have been granted relief,
    but only whether, at the time his rights were violated, he had
    a “plausible” ground for relief. Detailing, as the majority
    does, cases in which the BIA chose not to exercise its
    UNITED STATES V. VALDEZ-NOVOA                    41
    discretion underscores only that the choice to grant or not lies
    with the BIA. Those cases do not prove, given the ranks of
    cases similar to Valdez-Novoa’s in which relief was granted,
    that relief was not “plausible.” When considered in light of
    the substantial positive factors, the combination of favorable
    and unfavorable factors easily satisfies a standard of
    “plausibility” for relief from deportation. Valdez-Novoa has
    established prejudice under 
    Ubaldo-Figueroa, 364 F.3d at 1048
    .
    The existence of such a wide range of cases—both
    granting and denying relief—only highlights that the BIA and
    IJs have taken a broad view of when to grant voluntary
    departure. I fear that the panel’s contrary result in this case
    turns the plausibility standard into something it was never
    intended to be: a preponderance or probability standard. The
    standard is low because the affront inherent in the violation
    is great. Without a true plausibility standard and the remedy
    of dismissal of the indictment, there would be no effective
    deterrent to due process violations in this context. I therefore
    respectfully dissent.