United States v. Bahena-Cardenas ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 03-50479
Plaintiff-Appellee,
v.  D.C. No.
CR-02-00300-BTM
ESTEBAN BAHENA-CARDENAS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted
December 9, 2004—Pasadena, California
Filed June 13, 2005
Before: Stephen Reinhardt, Cynthia Holcomb Hall, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Hall
6993
6996 UNITED STATES v. BAHENA-CARDENAS
COUNSEL
Michael Edmund Burke, San Diego, California, for the
defendant-appellant.
Anne Kristina Perry, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.
UNITED STATES v. BAHENA-CARDENAS 6997
OPINION
HALL, Senior Circuit Judge:
Esteban Bahena-Cardenas was convicted by a jury of enter-
ing the United States without permission of the Attorney Gen-
eral after being excluded, deported, or removed from the
United States, in violation of 8 U.S.C. § 1326. We affirm.
BACKGROUND
Bahena-Cardenas first came to the attention of the immi-
gration service following his and his brother’s arrest and con-
viction for possessing heroin with intent to sell. After serving
his sentence for the drug crime, he and his brother were
ordered deported following a joint hearing in front of an
immigration judge (“IJ”) at which they were represented by
counsel. Bahena-Cardenas was not able to attend the first day
of the hearing because he was in a coma caused by a car acci-
dent. The IJ denied his lawyer’s request that his case be sev-
ered from his brother’s so that the hearing would not take
place in his absence. During this first day, the government
presented the testimony of the undercover Drug Enforcement
Agency (“DEA”) agent who arrested Bahena-Cardenas and
his brother. After Bahena-Cardenas recovered and was pres-
ent, the agent was recalled and fully cross-examined. The IJ
determined that Bahena-Cardenas was not a United States cit-
izen and ordered him deported.
In 2000, a San Diego County employee discovered Bahena-
Cardenas in San Diego. He was subsequently charged with
entering the United States without receiving permission from
the Attorney General after being deported under 18 U.S.C.
§ 1326. He was tried in front of a jury and convicted on June
5, 2003. Three major issues arose at trial, namely, whether
Bahena-Cardenas was an American citizen, whether an expert
witness should have been allowed to testify about delayed
birth certificates in Mexico, and whether there was sufficient
6998 UNITED STATES v. BAHENA-CARDENAS
evidence that Bahena-Cardenas physically left the country
after being deported and later voluntarily reentered. On
appeal, Bahena-Cardenas also raised due process claims con-
cerning his deportation hearing and contends that his sentence
was in error.
The jury was instructed to decide the following elements
beyond a reasonable doubt: (1) whether the defendant was not
a citizen of the United States; (2) whether the defendant had
previously been deported and actually removed from the
United States to Mexico; (3) whether the defendant voluntar-
ily reentered and remained in the United States without the
Attorney General consenting to a reapplication by the defen-
dant for admission into the United States; and (4) whether the
defendant was found in the southern district of California.
With regard to Bahena-Cardenas’ alienage, the prosecution
had to prove beyond a reasonable doubt that Bahena-Cardenas
was not a United States citizen. Bahena-Cardenas argued that
he was born in San Diego and was therefore a United States
citizen. Both sides introduced as evidence a number of docu-
ments compiled in Bahena-Cardenas’ immigration record or
“A file.” The government’s evidence included a Mexican
birth certificate that was created when Bahena-Cardenas was
13, several school records from American schools listing
Mexico as his place of birth, and a certificate of baptism
issued in 1985 listing his birthplace as Mexico. As evidence
of being born in the United States, Bahena-Cardenas intro-
duced two additional certificates of baptism (signed by differ-
ent pastors) from 1988 and 1989 that showed his birth place
as San Diego, a Mexican tourist visa, typically issued to
American citizens for travel in Mexico issued to Bahena-
Cardenas, a hospital admission record indicating a California
birthplace, and a 1988 birth registration showing that Bahena-
Cardenas was born at home in San Diego. The defense also
submitted as evidence of United States citizenship a voter reg-
istration card and social security records. Bahena-Cardenas
UNITED STATES v. BAHENA-CARDENAS 6999
also introduced a student eligibility report for the year 1982-
83 that listed his citizenship as American.
Both sides also elicited witnesses testimony. A prosecution
witness testified that non-citizens can procure voter registra-
tion cards and social security records because no evidence of
citizenship is required. A defense witness testified that she
was a teenager when Bahena-Cardenas was born and was
with Bahena-Cardenas’ mother at her San Diego home when
she began feeling labor pains. The witness testified that she
went to get her mother while a friend got another adult, Flavio
Canio, who arrived to help deliver the baby. The witness was
not allowed inside the house but remained on the porch while,
Mrs. Bahena-Cardenas gave birth. Two or three days later, the
witness went into the house and saw the baby Esteban. How-
ever, the witness was not able to remember the date of Este-
ban’s birth.
Bahena-Cardenas’ mother testified that Esteban was born at
home in San Diego. She said that the only people in the room
with her when Esteban was born were her husband and a
friend, Flavio Canio. She testified that the family did not get
an American birth certificate for Esteban when he was youn-
ger because “my husband was negligent, he didn’t let me do
anything. . . . Then, afterwards, when the child grew, that is
when I told my husband, let’s take care of the certificate for
the child.” She was not aware of anyone getting Esteban a
Mexican birth certificate. On cross-examination, the prosecu-
tor impeached her with testimony from the deportation pro-
ceeding in which she had testified that her husband and sister-
in-law, not Flavio Canio, were present at the birth. She also
admitted that she could not remember Esteban’s date of birth.
She was not able to explain why Esteban’s school records
listed Mexico as his place of birth. Nor could she explain why
she waited until her younger son became a United States citi-
zen to adjust her status, rather than adjusting when Esteban
turned 18, as would have been allowed had Esteban been a
United States citizen.
7000 UNITED STATES v. BAHENA-CARDENAS
The defense sought to present an expert witness to explain
the phenomenon of delayed birth certificates in Mexico. The
expert witness, a sociology professor, had done research into
families living along the border of Mexico and the United
States and was prepared to testify that according to a small
study she directed of such families, around ten percent of
them lied to get Mexican birth certificates. The judge
excluded this testimony because, he ruled, there was an insuf-
ficient foundation to suggest that the study’s results were rele-
vant to the issue of Bahena-Cardenas’ birth certificate, which
was procured in a different state. Nor could the expert witness
testify as to whether there was an amnesty program in place
at the time that allowed families to register births without pay-
ing a fee, although she was allowed to testify to the general
existence of such amnesty programs. The judge also allowed
the expert to testify that having a Mexican birth certificate is
required to enroll in public schools and to receive free health
care in Mexico.
The second element the prosecution was required to prove
was whether Bahena-Cardenas actually left the United States
following his deportation order. The government produced a
warrant of deportation, signed by a deportation officer who
attested to watching Bahena-Cardenas walk across the border.
That agent did not testify at trial. Instead, another agent testi-
fied that the normal practice is for deportation officers to sign
the warrant of deportation when they see the alien leave the
United States.
The jury was instructed to find Bahena-Cardenas guilty
only if the government had proven all the necessary elements
beyond a reasonable doubt. The jury returned a verdict of
guilty. When the jury foreperson attempted to read the verdict
in open court, he had difficulty, and the juror sitting next to
him read it instead.
At sentencing, the judge denied all of the defense attorney’s
requests for downward adjustments, including that for accept-
UNITED STATES v. BAHENA-CARDENAS 7001
ing responsibility. The judge increased the sentence because
of Bahena-Cardenas’ prior convictions. The judge ruled that
although he had discretion not to increase Bahena-Cardenas’
criminal history score because the conviction for heroin traf-
ficking was 20 years old, he declined to do so. He said he was
influenced at least in part by the fact that Bahena-Cardenas
had a more recent conviction for transportation of metham-
phetamine.
DISCUSSION
I. Constitutionality of 8 U.S.C. § 1326
Bahena-Cardenas argues that 8 U.S.C. § 1326 is unconsti-
tutional under Apprendi v. New Jersey, 530 U.S. 466 (2000),
because an administrative adjudication — a prior deportation
— is an element of the offense. He argues that because a
deportation hearing is held without the same procedural pro-
tections and with a lower standard of proof than criminal pro-
ceedings, such a hearing cannot be one of the elements of a
criminal offense.
[1] Section 1326 does not violate the rule of Apprendi,
which requires that “any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be sub-
mitted to a jury and proved beyond a reasonable doubt.” 530
U.S. at 490. Under § 1326 the government must prove that an
alien was “denied admission, excluded, deported, or removed
from the United States” and “thereafter . . . enters, attempts
to enter, or is at any time found in, the United States.” The
relevant element is whether Bahena-Cardenas was ordered
deported, and the jury found that fact beyond a reasonable
doubt. Although a deportation hearing establishes that an
alien was “denied admission” or “excluded,” and establishing
this fact satisfies an element of a § 1326 conviction, the gov-
ernment may not rely on the deportation hearing, but must
separately prove the exclusion element to secure a § 1326
conviction. Therefore the criminal trial on a §1326 charge
7002 UNITED STATES v. BAHENA-CARDENAS
does not “allow the use of an administrative determination as
conclusive evidence of a fact in a criminal prosecution.”
United States v. Mendoza-Lopez, 481 U.S. 828, 834 n.7
(1987).
Second, the fact that there are fewer due process safeguards
in a deportation hearing does not make § 1326 unconstitu-
tional because the Supreme Court has held that deportation
hearings must comport with the requirements of due process
before they “may be used to establish conclusively an element
of a criminal offense.” Mendoza-Lopez, 481 U.S. at 838. To
ensure that an alien is convicted of violating § 1326 only after
a valid deportation hearing, the deportation hearing must be
subject to judicial review, including collateral review if neces-
sary. Id. Because all facts necessary for a conviction, includ-
ing whether the defendant was previously deported, must be
proven to a jury beyond a reasonable doubt, and because the
deportation itself may be attacked collaterally, § 1326 is not
unconstitutional. See United States v. Lara-Aceves, 183 F.3d
1007, 1011-12 (9th Cir. 1999) reversed on other grounds by
United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001)
(holding that using a prior deportation as an element in a
§ 1326 conviction is not unconstitutional despite the lesser
protections available in a deportation hearing).
II. Sufficiency of the Evidence
Bahena-Cardenas argues that there was insufficient evi-
dence with respect to three of the four elements of 8 U.S.C.
§ 1326 — voluntary entry, physical departure after deporta-
tion, and alienage. Because a jury found as a matter of fact
that Bahena-Cardenas was guilty, we “must review the evi-
dence presented against the defendant in the light most favor-
able to the government to determine whether any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Pacheco-
Medina, 212 F.3d 1162, 1163 (9th Cir. 2000) (internal quota-
tions omitted).
UNITED STATES v. BAHENA-CARDENAS 7003
A. Voluntary Entry
[2] Bahena-Cardenas argues that the government did not
present sufficient evidence that he voluntarily reentered the
United States, as required by 8 U.S.C. § 1326.1 Although the
prosecution did not present any direct evidence of voluntary
entry, such entry could be permissibly inferred from the gov-
ernment’s evidence.
At trial, the government presented evidence that Bahena-
Cardenas was found in National City, California, a city in San
Diego County that does not share a border with Mexico.
Bahena-Cardenas did not present any evidence to the con-
trary. This evidence is sufficient to prove voluntary entry
under United States v. Quintana-Torres, 224 F.3d 1157 (9th
Cir. 2000).
[3] In Quintana-Torres, we held that “evidence of [the
defendant] being in the United States a distance from the bor-
der was sufficient in this case to justify any reasonable juror
inferring that he had voluntarily entered the United States.”
Id. at 1158. In the absence of evidence suggesting that the
defendant entered the United States involuntarily, his pres-
ence in the United States “is circumstantial proof [of volun-
tary reentry] that is convincing unless explained away”
because of the small likelihood that someone entered the
United States involuntarily. Id. at 1159. Because Bahena-
Cardenas did not present any such evidence, we hold that the
government produced sufficient evidence to allow any ratio-
1
Bahena-Cardenas also argues that the allegations in the indictment
were insufficient because the indictment did not allege entry. However,
“we have never suggested that the crime of ‘entry’ must be charged in
order to charge the crime of being ‘found in’ ” the United States. United
States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001). In Parga-
Rosas, the court specifically held that even though voluntary entry is an
element that must be proven at trial, it need not be specifically alleged
when the indictment charges that the defendant was found in the United
States. Id.
7004 UNITED STATES v. BAHENA-CARDENAS
nal jury to decide that Bahena-Cardenas entered the United
States voluntarily.
B. Physical Removal
The government must prove beyond a reasonable doubt that
Bahena-Cardenas physically left the country sometime
between the time he was ordered deported and the time he
was found in the United States. United States v. Romo-Romo,
246 F.3d 1272, 1275-76 (9th Cir. 2001). Indeed, “an alien
must actually leave the country before he can be convicted
under § 1326.” Id. Bahena-Cardenas argues that the govern-
ment failed to provide sufficient evidence of physical removal
because the only evidence showing that he actually left the
United States after he was ordered deported was inadmissible
hearsay under Crawford v. Washington, 124 S. Ct. 1354
(2004).
To prove physical removal, the government offered into
evidence a warrant of deportation, signed by an immigration
official. The form included a statement that the officer who
signed the document “witnessed” Bahena-Cardenas’ depar-
ture. At trial, a second immigration official testified that it
was standard practice for immigration officers to complete
and sign a warrant of deportation as they witnessed an alien’s
deportation. This second immigration officer admitted, how-
ever, that he did not “personally observe Mr. Bahena leaving
the country.”
Before Crawford, 124 S. Ct. 1354, the admissibility of the
warrant of deportation was clearly established in this circuit.
See United States v. Contreras, 63 F.3d 852, 857 (9th Cir.
1995) (holding that “[t]he I-205 form [warrant of deportation]
is hearsay, but is admissible under the public records excep-
tion to the hearsay rule”); see also United States v.
Hernandez-Rojas, 617 F.2d 533 (9th Cir. 1980). Bahena-
Cardenas argues that after the Supreme Court’s decision in
UNITED STATES v. BAHENA-CARDENAS 7005
Crawford, the warrant of deportation is no longer admissible.
We disagree.
[4] In Crawford, the Supreme Court held that “the govern-
ment cannot introduce testimonial evidence against a criminal
defendant where the declarant is unavailable at trial and there
was no opportunity for cross-examination at the time the prior
testimony was given.” United States v. Wilmore, 381 F.3d
868, 871 (9th Cir. 2004) (emphasis added) (citing Crawford,
124 S. Ct. at 1374); see Parle v. Runnels, 387 F.3d 1030, 1037
(9th Cir. 2004) (holding that Crawford does not apply to non-
testimonial hearsay). However, the Supreme Court declined to
define what constitutes testimonial evidence. Instead, the
Court noted that “[w]e leave for another day any effort to
spell out a comprehensive definition of ‘testimonial.’ What-
ever else the term covers, it applies at a minimum to prior tes-
timony at a preliminary hearing, before a grand jury, or at a
former trial; and to police interrogations.” Crawford, 124
S. Ct. at 1374.
[5] We conclude that the warrant of deportation is nontesti-
monial because it was not made in anticipation of litigation,
and because it is simply a routine, objective, cataloging of an
unambiguous factual matter. In United States v. Hernandez-
Rojas, 617 F.2d 533, 535 (9th Cir. 1980), we held that a war-
rant of deportation “has none of the features of the subjective
report made by a law enforcement official in an on-the-scene
investigation, which investigative reports lack sufficient guar-
antees of trustworthiness because they are made in an adver-
sary setting and likely to be used in litigation.” Indeed, “[t]he
notation that [defendant] was deported to Mexico was a min-
isterial, objective observation, which has inherent reliability
because of the Government’s need to keep accurate records of
the movement of aliens.” Id. Additionally, in United States v.
Contreras, 63 F.3d 852, 857 (9th Cir. 1995), we echoed this
reasoning, holding that “the notation on an I-205 form [war-
rant of deportation] indicating that an alien has left the coun-
try is a routine, objective, indeed mechanical recording of an
7006 UNITED STATES v. BAHENA-CARDENAS
unambiguous factual matter.” In this sense, the warrant of
deportation is no different than a birth certificate or any other
public record which constitutes the routine cataloguing of an
unambiguous factual matter. Surely Crawford did not mean to
require the doctor or nurse who actually filled out a birth cer-
tificate to testify as to its veracity.
We hold that the warrant of deportation in this case is non-
testimonial and thus admissible. Accordingly, the government
provided sufficient evidence of physical removal.
C. Alienage
Bahena-Cardenas argues that there was insufficient evi-
dence for a jury to find beyond a reasonable doubt that he was
not a United States citizen. “This sufficiency-of-the-evidence
challenge can succeed only if, viewing the evidence in the
light most favorable to the prosecution, no rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” U.S. v. Lo, 231 F.3d 471, 475
(9th Cir. 2000). However,
this inquiry does not require a court to ask itself
whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt. Instead,
the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979) (emphasis
in original) (citing Johnson v. Louisiana, 406 U.S. 356, 362
(1972)). We have held that “[t]his familiar standard gives full
play to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.”
Jackson, 443 U.S. at 319.
UNITED STATES v. BAHENA-CARDENAS 7007
The government’s evidence to support its claim of alienage
consisted of (1) a Mexican birth certificate obtained by
Bahena-Cardenas’ father when he was 13; (2) elementary and
secondary school records from American schools that listed
Mexico as his place of birth; (3) a 1985 certificate of baptism
issued in the United States listing his birthplace as Mexico;
and (4) evidence of deportation. In his defense, Bahena-
Cardenas introduced (1) additional certificates of baptism
from a church in the United States signed by different pastors
in 1988 and 1989 that showed his birth place as San Diego;
(2) a Mexican tourist visa typically issued to American citi-
zens traveling to Mexico; (3) a hospital admission record indi-
cating a California birthplace; (4) a voter registration card
issued after deportation proceedings began, (5) social security
records; (6) a student eligibility report from 1982-83 listing
his citizenship as American; (7) a birth certificate issued in
1988 showing that Bahena-Cardenas was born at home in San
Diego; and (8) testimony from his mother and a family friend
that Bahena-Cardenas was born at home in San Diego.
[6] The jury resolved the conflicting evidence in the gov-
ernment’s favor and concluded beyond a reasonable doubt
that defendant was not a United States citizen. While the evi-
dence was contradictory on this point, contradictory evidence
alone does not require us to find that no rational jury could
have made such a finding. It is the responsibility of the jury
to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences. That the jury found the
defendant guilty shows that the jury rejected or found uncon-
vincing the contrary evidence. As the Supreme Court held in
Johnson, 406 U.S. at 362 (internal citations omitted):
Jury verdicts finding guilt beyond a reasonable doubt
are regularly sustained even though the evidence was
such that the jury would have been justified in hav-
ing a reasonable doubt; even though the trial judge
might not have reached the same conclusion as the
jury; and even though appellate judges are closely
7008 UNITED STATES v. BAHENA-CARDENAS
divided on the issue whether there was sufficient evi-
dence to support a conviction.
After viewing the evidence in the light most favorable to
the government, we conclude that a rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt.
III. Foreperson’s Inability to Read the Verdict
[7] When the jury foreman attempted to read the verdict in
open court, he stumbled and stammered, and ultimately a dif-
ferent juror read the verdict. Bahena-Cardenas argues that
these actions were signs of juror illiteracy and that having an
illiterate person on the jury would compromise his due pro-
cess rights because the juror would not have been able to read
the large number of written exhibits introduced by both sides.
Bahena-Cardenas does not cite any case law in support of his
contention that inclusion of an illiterate juror is a due process
violation, and we can find none. Additionally, such conduct
seems equally indicative of nervousness. Accordingly, we
conclude that the foreperson’s difficulty reading the verdict in
open court did not result in a violation of Bahena-Cardenas’
due process rights.
IV. Due Process Challenges to the Original Deportation
Hearing
A due process violation that renders the underlying depor-
tation invalid also invalidates a conviction under 8 U.S.C.
§ 1326. Mendoza-Lopez, 481 U.S. at 840. Bahena-Cardenas
argues that the underlying deportation was invalid because the
hearing violated his due process rights in two ways. First,
Bahena-Cardenas argues that his due process rights were vio-
lated because he was in a coma during the first day of his
hearing. Second, Bahena-Cardenas contends that the immigra-
tion judge’s failure to advise him of the possibility of discre-
UNITED STATES v. BAHENA-CARDENAS 7009
tionary relief violated due process. We are not persuaded by
either argument.
A. Lack of Presence at Hearing
[8] Bahena-Cardenas argues that holding the immigration
hearing when he could not be present violated his due process
rights. He is correct that due process requires physical pres-
ence in deportation hearings. See United States v. Leon-Leon,
35 F.3d 1428, 1431 n.2 (9th Cir. 1994) (citing Purba v. INS,
884 F.2d 516, 517 (9th Cir. 1989) (holding that an alien is
entitled to be physically present at a deportation hearing)).
However, we conclude that the violation was not prejudicial.
Bahena-Cardenas argues that holding the hearing without
his presence was such an egregious due process violation that
it is unnecessary to show prejudice. However, we have con-
sistently held that defendants must show prejudice in order to
invalidate a § 1326 conviction even when the due process vio-
lation is clear. See, e.g., United States v. Alvarado-Delgado,
98 F.3d 492, 493 (9th Cir. 1996) (en banc) (holding that
defendant who was deported without being informed of his
right to a deportation hearing, while having established a vio-
lation of due process, must still show prejudice); Leon-Leon,
35 F.3d at 1431 (holding that “in spite of any violation of the
alien’s due process rights, the deportation order may still be
used to prove an element of a crime if the alien fails to show
prejudice resulting from the violation”); United States v.
Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992) (en banc)
(holding that “[t]he defendant also bears the burden of prov-
ing prejudice” when immigration judge did not act in accord
with due process).
[9] Bahena-Cardenas has not demonstrated that he was
prejudiced by his absence on the first day of his deportation
hearing. During the portion of the hearing that Bahena-
Cardenas missed, the only person who testified was the DEA
agent who arrested Bahena-Cardenas for selling heroin. The
7010 UNITED STATES v. BAHENA-CARDENAS
agent was later recalled and subjected to full cross-
examination in Bahena-Cardenas’ presence. Moreover, the
immigration judge specifically did not find the agent’s testi-
mony dispositive.
Bahena-Cardenas also argues that his absence from the
beginning of the trial violated his Sixth Amendment rights
because he was denied the opportunity to assist his lawyer
effectively during the deportation hearing, making it the
equivalent of an “uncounseled prior.” Although aliens in
deportation proceedings have no constitutional right to coun-
sel under the Sixth Amendment, Lara-Aceves, 183 F.3d at
1010 (citing Magallanes-Damian v. INS, 783 F.2d 931, 933
(9th Cir. 1986)), the Fifth Amendment right to due process
has been construed to give aliens the right to have counsel
present. See Baltazar-Alcazar v. INS, 386 F.3d 940, 944 (9th
Cir. 2004).
Bahena-Cardenas, however, was not denied counsel. In
fact, his lawyer was present at the hearing and it was Bahena-
Cardenas himself who was unavailable. We find no precedent
that suggests that a defendant’s absence from a hearing or
trial, when counsel is present, constitutes a denial of the right
to counsel. Indeed, the right to counsel is important because
of the difficulty aliens have in presenting their cases force-
fully and effectively:
A petitioner must weave together a complex tapestry
of evidence and then juxtapose and reconcile that
picture with the voluminous, and not always consis-
tent, administrative and court precedent in this
changing area. . . . These factors and related legal
requirements are daunting enough for a seasoned
immigration lawyer. . . . It is no wonder we have
observed with only a small degree of hyperbole, the
immigration laws have been termed second only to
the Internal Revenue Code in complexity. A lawyer
UNITED STATES v. BAHENA-CARDENAS 7011
is often the only person who could thread the laby-
rinth.
Baltazar-Alcazar, 386 F.3d at 947-48 (internal citations and
quotations omitted). An alien’s absence from the proceedings
when a lawyer is ably representing his interests does not
create such problems.
Accordingly, we conclude that Bahena-Cardenas’ § 1326
conviction should not be overturned based on the fact that he
was not present for the beginning of his deportation hearing.
B. Failure to Inform of Discretionary Relief
Bahena-Cardenas argues that his due process rights were
violated because the immigration judge did not advise him of
plausible discretionary relief. Bahena-Cardenas was deported
following a conviction for selling heroin, and he is therefore
excludable under 8 U.S.C. § 1182(a)(2). The only waiver
available is found in subsection (h), which applies only to
those aliens who were convicted of a single offense of simple
possession of 30 grams or less of marijuana, and therefore
does not apply to Bahena-Cardenas. Accordingly, because
Bahena-Cardenas could not plausibly qualify for discretionary
relief, there is no due process violation.
V. Testimony of Mexican “Cultural Expert”
Bahena-Cardenas argues that the district judge erred in
refusing to allow one of the defense’s expert witnesses to tes-
tify. We review the district court’s decision to exclude expert
witness testimony for abuse of discretion. United States v.
Cordoba, 194 F.3d 1053 (9th Cir. 1999). We conclude that it
was not an abuse of discretion to hold that such testimony
involved more cultural stereotypes than scientific evidence.
The defense provided a witness who claimed to be an
expert in Mexican transborder culture. Outside of the pres-
7012 UNITED STATES v. BAHENA-CARDENAS
ence of the jury, the expert testified about a small-scale study
she performed in which a small percentage of study respon-
dents in Tijuana reported lying to Mexican officials in order
to get a Mexican birth certificate. The defense argued that the
study supported the possibility that Bahena-Cardenas’ father
similarly lied when registering his son’s birth. The district
court refused to allow the testimony, reasoning that the study
was too small and did not involve practices in Guerrera, the
state that issued Bahena-Cardenas’ birth certificate. The court
also reasoned that only impermissible stereotypes would
allow the jury to generalize from the expert’s study to the par-
ticular facts in this case. The court did allow the expert to tes-
tify that having a Mexican birth certificate is required to
enroll in public schools and to receive free health care in
Mexico.
[10] The expert’s study involved only 56 people, and of
those, only five or six reported lying to get a Mexican birth
certificate. Generalizing from this scant evidence to reach
conclusions in this particular case could encourage jurors to
resort to cultural stereotypes. Refusing to allow expert testi-
mony that would encourage or require jurors to rely on cul-
tural stereotypes is not an abuse of discretion. See United
States v. Verduzco, 373 F.3d 1022, 1034 (9th Cir. 2004)
(holding that it was not an abuse of discretion to exclude
expert witness testimony regarding drug cultures); Jinro
America Inc. v. Secure Investments, Inc., 266 F.3d 993, 1007
(9th Cir. 2001) (“Allowing an expert witness in a civil action
to generalize that most Korean businesses are corrupt, are not
to be trusted and will engage in complicated business transac-
tions to evade Korean currency laws is tantamount to ethnic
or cultural stereotyping, inviting the jury to assume the
Korean litigant fits the stereotype.”); United States v. Rubio-
Villareal, 927 F.2d 1495, 1502 n.6 (9th Cir. 1991) (holding
that it was not an abuse of discretion to reject testimony that
“would have shown that [defendant’s] failure to register his
truck is a common phenomenon in Mexico”).
UNITED STATES v. BAHENA-CARDENAS 7013
VI. Sentencing
[11] Because Bahena-Cardenas did not challenge his sen-
tence on Sixth Amendment grounds in the district court, we
grant a limited remand pursuant to United States v. Ameline,
No. 02-30326, slip op. at 6368-71 (9th Cir. June 1, 2005) (en
banc).
CONCLUSION
Accordingly, the judgment of the district court is
AFFIRMED IN PART and REMANDED.