United States v. Noe Cuenca-Vega

FILED
NOT FOR PUBLICATION OCT 30 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10356
Plaintiff - Appellee, D.C. No. 3:10-cr-00419-SI-1
v.
MEMORANDUM*
NOE EZEQUIEL CUENCA-VEGA,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted August 14, 2013
San Francisco, California
Before: REINHARDT, NOONAN, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I.
Noe Cuenca-Vega was born in Mexico in 1979 and moved to the United
States at age 13 with his mother, who became a naturalized United States citizen.1
In 1998, Cuenca became a lawful permanent resident. In 2000, he pleaded no
contest to possession of methamphetamine. He served his sentence of 60 days in a
county jail and was removed to Mexico on September 24, 2002. On May 13,
2010, Cuenca was arrested by a U.S. Immigration and Customs Enforcement
agent, having reentered the United States without inspection.2 He was convicted of
criminal reentry, 8 U.S.C. 1326(a), at a jury trial and sentenced to 77 months of
federal imprisonment.
Prior to trial, Cuenca had moved to dismiss the criminal reentry indictment
on the ground that his 2002 removal order was invalid. He argued that he was
1
The record does not indicate when Cuenca’s mother was naturalized, but it
does show that Cuenca obtained his lawful permanent resident status through his
mother on November 19, 1998. In order to obtain adjustment of status for her son,
Cuenca’s mother must already have been a citizen. 8 U.S.C. § 1151(b)(2)(A)(i).
We can therefore assume that she was a citizen by 1998.
2
After being deported, Cuenca was found in the United States and removed
four additional times before the entry at issue here. The government appears to
concede that these removals were reinstatements of Cuenca’s 2002 removal order
and therefore cannot separately support Cuenca’s current conviction under 8
U.S.C. § 1326. See United States v. Arias-Ordonez, 597 F.3d 972, 978 (9th Cir.
2010).
2
denied due process in his removal hearings because the Immigration Judge (IJ) did
not have sufficient evidence to conclude that his 2001 conviction was a “controlled
substances offense” within the meaning of 8 U.S.C. § 1227(a)(2)(B). On appeal,
Cuenca argues that he was also denied due process on the grounds that the IJ failed
to advise him of his apparent eligibility for voluntary departure, and that his
immigration lawyer was ineffective in failing to file an appeal. We consider here
only the IJ’s failure to advise Cuenca of his apparent eligibility for voluntary
departure.
II.
A defendant charged with illegal reentry can prevail on a collateral challenge
to his underlying removal when he demonstrates (1) that the IJ failed to inform him
of his apparent eligibility for relief and (2) that he had plausible grounds for relief.
See United States v. Rojas-Pedroza, 716 F.3d 1253, 1262-63 (9th Cir. 2013);
United States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003). The
parties agree that Cuenca has satisfied the first requirement. The government
concedes that “the IJ was obligated to advise Cuenca of his apparent eligibility for
voluntary departure during the 2002 deportation proceedings;” “[t]he record does
not contain the required advisement;” “[a]n IJ’s failure to advise an alien of those
forms of relief from deportation for which he is apparently eligible constitutes a
3
due process violation;” and “the parties agree that the IJ erred.” The parties
dispute whether Cuenca has satisfied the second requirement. The government
argues that Cuenca has not demonstrated that he had plausible grounds for relief
because “the record is silent on whether defendant would have availed himself of
the opportunity for voluntary departure had it been offered” and “the record shows
that defendant was actively pursuing a strategy to avoid removal altogether.”
We reject this argument. The government overstates Cuenca’s burden to
demonstrate a plausible ground for relief. Under the law of the circuit, Cuenca
need make only a prima facie showing of prejudice.
[A]n alien who wishes to challenge the legality of a previous deportation bears
the initial burden of producing evidence indicating that a violation of an INS
regulation occurring during the alien’s deportation prejudiced his or her
interests protected by the regulation in such a manner so as actually to have
had the potential for affecting the outcome of the proceedings. Once such a
prima facie showing of prejudice is made, the burden then shifts to the
government to show that the violation could not have changed the outcome of
the deportation proceedings.
United States v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir. 1986). See also
United States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003). The
government’s concession that Cuenca was eligible for pre-conclusion voluntary
departure amounts to a concession that Cuenca has made a prima facie showing of
prejudice. Cuenca “does not have to show that he actually would have been
4
granted relief. Instead, he must only show that he had a ‘plausible’ ground for
relief from deportation.”3 United States v. Arrieta, 224 F.3d 1076 (9th Cir. 2000).
It then becomes the government’s burden, not Cuenca’s, to show that the violation
could not have changed the outcome of the proceedings.
3
“Where the relevant form of relief is discretionary,” the noncitizen must
also “make a ‘plausible’ showing that the facts presented would cause the Attorney
General to exercise discretion in his favor.” Rojas-Pedroza, 716 F.3d at 1263
(quoting United States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir. 2011)).
Cuenca has made a plausible showing, unconstested by the government, that the IJ
would have exercised discretion in his favor. “[I]n exercising discretion on a
voluntary departure application an IJ should take into account both favorable and
unfavorable factors.” Rojas-Pedroza, 716 F.3d at 1264 (internal citation and
quotation marks omitted). Favorable equities include “long residence” and “close
family ties to the United States.” Id. at 1265. Unfavorable 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 any other evidence of bad character or the undesirability of
the applicant as a permanent resident.” Id. (internal citation and quotation marks
omitted).
At the time Cuenca was ordered removed, he had several positive equities:
he had been in the United States for ten years, since age 13; his mother was a
United States citizen; he had graduated from a California high school; and he had
been employed from 1999 to 2002. His negative equities at the time were only the
predicate conviction for possession of methamphetamine, for which he received a
sentence of 60 days, and some traffic offenses. These offenses are not sufficiently
serious to make it implausible that he would have been granted relief. See, e.g., In
re: Orridge, 2011 WL 3443885 (BIA 2011)(recognizing that positive equities
could outweigh the noncitizen’s conviction for possession of crack cocaine); In re:
Franciso Franco, 2005 WL 952426 (BIA 2005)(affirming discretionary grant of
voluntary departure to noncitizen convicted of possession of cocaine); In re: Luis
Alonzo Gonazles-Figeroa, 2006 WL 729784 (BIA 2006)(affirming grant of
voluntary departure where petitioner had four convictions for assault, one for
resisting arrest, and numerous other arrests).
5
The government argues that at the time of the deportation proceedings,
Cuenca was attempting to expunge his criminal conviction and thus would not
have accepted an offer of voluntary departure. This does not meet the
government’s burden. Cuenca’s seeking of expungement was not incompatible
with accepting voluntary departure. Although Cuenca would have had to concede
removability to obtain voluntary departure, he could nonetheless have continued to
seek expungement from abroad, had he not obtained it prior to accepting voluntary
departure.4 If he obtained expungement afterwards, he could have reopened his
removal proceedings. See Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1106 (9th
Cir. 2006) (“[A] deportation based upon an invalid conviction is not ‘legally
executed’ and . . ., therefore, the defective deportation may be reopened after the
petitioner has left the country.”). Alternatively, he could have applied for a new
visa through his United States citizen mother. In addition to being compatible with
his pursuit of expungement, a strategy of accepting voluntary departure presented
at least one strategic advantage for Cuenca: at minimum, he would not have been
subject to the criminal reentry statute unless he was subsequently deported.
4
Cuenca would have needed to concede only the fact of his conviction, not
the factual allegations underlying the conviction, so that accepting voluntary
departure and seeking expungement would not have been inherently contradictory
postures. See Reyes-Torres v. Holder, 645 F.3d 1073, 1077 n.1 (9th Cir. 2011).
6
The government argues that our review of Cuenca’s claim should use a plain
error standard because Cuenca did not present before the district court any
discussion of the IJ’s failure to advise him of his apparent eligibility for voluntary
departure. This argument is incorrect. “Once a federal claim is properly presented,
a party can make any argument in support of that claim; parties are not limited to
the precise arguments they made below.” Yee v. City of Escondido, Cal., 503 U.S.
519, 534 (1992). Here, Cuenca’s voluntary departure argument “is not a new
claim. Rather, it constitutes an alternative argument to support what has been his
consistent claim from the beginning,” United States v. Pallares-Galan, 359 F.3d
1088, 1095 (9th Cir. 2004), namely, that the 2002 deportation order was invalid as
violative of due process: in short, the invalid order cannot support a conviction for
criminal reentry. Thus, we review the denial of a motion to dismiss de novo, as
we do “when the motion to dismiss is based on an alleged due process defect in the
underlying deportation.” Id. at 1094. Under de novo review, it is clear that
Cuenca has made a prima facie showing of eligibility for relief and of prejudice,5
and that the government has not met its burden of showing that the due process
violation could not have changed the outcome of the proceedings.
5
All of the facts necessary to sustain the voluntary departure argument were
before the district court in the transcripts of the deportation proceedings.
7
Even under plain error review, Cuenca would prevail. “Rule 52(b) [of the
Federal Rules of Criminal Procedure] permits an appellate court to recognize a
‘plain error that affects substantial rights’ even if the claim of error was ‘not
brought’ to the district court’s ‘attention.’” United States v. Marcus, 130 S. Ct.
2159, 2164 (2010)(quoting Fed. R. Crim. P. 52(b)). The “plain error rule . . . sets
forth criteria that a claim of error not raised at trial must satisfy.” Id. at 2166.
Under plain error review, a defendant must demonstrate that
(1) there is an “error”; (2) the error is “clear or obvious, rather than subject
to reasonable dispute”; (3) the error “affected the outcome of the district
court proceedings”; and (4) “the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”
United States v. Marcus, 130 S. Ct. 2159, 2164 (2010)(quoting Puckett v. United
States, 556 U.S. 129, ___ (2009))(alterations by the Supreme Court).
8
There is no doubt that holding the deportation order valid was a legal error
that was clear and obvious under the law.6 The government argues that Cuenca did
not satisfy the third requirement for plain error because he did not show that “the
error actually prejudiced his substantial rights.” The third requirement means that
“there must be a reasonable probability that the error affected the outcome of the
trial.” United States v. Marcus, 130 S. Ct. at 2164. Here, the legal error affected
the outcome of the trial because the due process violation would have required the
court to dismiss the indictment with prejudice.
The government also argues that the error did not “seriously affect[] the
fairness, integrity or public reputation of judicial proceedings” because “[a]fter his
6
The government cites United States v. Turman, 122 F.3d 1167, 1170 (9th
Cir. 1997), for the proposition that a plain error is an error that is “so clear-cut, so
obvious, a competent district court judge should be able to avoid it without benefit
of objection.” The Supreme Court explicitly rejected Turman’s approach in
Henderson v. United States, 133 S. Ct. 1121, 1129 (2013), holding that there was
plain error even when the District Judge had no way to know at the time he made
his ruling that it was error, “and perhaps not even clairvoyance could have led him
to hold to the contrary. . . . [P]lain error review is not a grading system for trial
judges.” The government is therefore incorrect when it asserts that “Cuenca must
show that a ‘competent’ district court would have identified those errors - and
determined if they prejudiced Cuenca - without development of the record by the
parties.” Here, finding the deportation to be valid was clear error, satisfying the
first two criteria, because Cuenca was not advised of his apparent eligibility for
relief, as the government concedes, and because, whether or not it was called to the
district court’s attention, he had plausible grounds for relief, unrebutted by the
government, as the record reveals.
9
2002 removal Cuenca was removed from the United States four separate times.”
Cuenca’s behavior subsequent to his deportation has no bearing on whether the
district court proceedings were fair when his 2002 deportation was deemed valid.
When an individual is convicted based on an invalid deportation order that violated
his right to due process, it must necessarily have a serious effect on the fairness and
integrity of judicial proceedings.
III.
Because Cuenca prevails on his voluntary departure argument, we need not
consider his contentions regarding the insufficiency of the evidence or ineffective
assistance of counsel.
REVERSED.
10
FILED
US v. Cuenca-Vega, No. 12-10356 OCT 30 2013
MOLLY C. DWYER, CLERK
HURWITZ, Circuit Judge dissenting: U.S. COURT OF APPEALS
Cuenca was removed in 2002 because of a drug conviction. He then re-entered
the United States without authorization five times—committing several crimes while
in the country—before finally being convicted of illegal reentry in 2012. The issue
today is whether Cuenca can successfully collaterally attack his 2002 removal order
and overturn the 2012 conviction. The majority holds that he can.
I disagree on two grounds. First, the appropriate standard of review for
Cuenca’s voluntary-departure due process claim, which he admits was first raised on
appeal, is plain error. Second, Cuenca has not demonstrated prejudice from the
alleged error.
I
In the district court, Cuenca asserted two due process claims relating to the
2002 removal order: (1) the immigration judge erred in ruling that he had been
convicted of a controlled substance offense, and (2) the immigration judge committed
a “separate due process violation” when he denied Cuenca’s request for a continuance
in order to seek post-conviction relief with respect to the California conviction that
gave rise to the removal proceedings. Cuenca never argued below that the
immigration judge also denied him due process by failing to advise him of the
1
possibility of voluntary departure. Cuenca’s attorney therefore forthrightly conceded
at oral argument that the voluntary-departure due process claim was not raised below.
To be sure, an argument made on appeal that is simply another way of
supporting a claim made below is sufficient to trigger harmless error review. For
example, in United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004), we
reviewed for harmless error the appellant’s argument that his conviction did not
qualify as an aggravated felony under the categorical approach, despite his failure to
pursue that precise argument below, because it was “an alternative argument to
support what has been his consistent claim from the beginning”: that his state law
conviction could not qualify as an aggravated felony. Id. at 1095. Colloquially, the
argument raised on appeal was “close enough” to that made below to avoid plain error
review.
Here, in stark contrast, the only possible relationship between the claims
Cuenca made below and the one he makes here is that they each derive generally from
the Due Process Clause. That is not nearly close enough. By holding that Cuenca
preserved his voluntary-departure claim by asserting entirely unrelated due process
claims below, the majority has in effect removed any incentive for a defendant
collaterally attacking a removal order to specify his problems with the order. Under
the majority’s logic, a defendant could preserve a Confrontation Clause claim for
2
appeal by raising a Speedy Trial Clause claim below; after all, both claims arise under
the Sixth Amendment.
That approach stretches the doctrine of Yee v. City of Escondido, 503 U.S. 519
(1992), past the breaking point. In Yee, the plaintiff asserted a physical occupation
Takings Clause claim below, but did not clearly assert a regulatory taking argument
until reaching the Supreme Court. Id. at 534–35. The Court nonetheless treated the
latter argument as preserved, noting that “arguments that the ordinance constitutes a
taking in two different ways, by physical occupation and by regulation, are not
separate claims” but rather “separate arguments in support of a single claim—that the
ordinance effects an unconstitutional taking.” Id.
In Yee, both arguments focused on precisely the same wrong — the
unconstitutional taking allegedly caused by the operation of the ordinance. In Exxon
Shipping Co. v. Baker, the Supreme Court admonished us that Yee did not allow
unfettered argument switching on appeal, holding that if “‘statutory preemption’ were
a sufficient claim to give Exxon license to rely on newly cited statutes anytime it
wished, a litigant could add new constitutional claims as he went along, simply
because he had ‘consistently argued’ that a challenged regulation was
unconstitutional.” 554 U.S. 471, 486–87 (2008) (quoting Yee, 503 U.S. at 533). I
therefore do not read Yee as allowing an appellant to allege on appeal an entirely
3
different error than that alleged below, but rather only to offer alternative arguments
about why the error identified below requires relief.
The wrongs alleged in Cuenca’s motion to dismiss the indictment relate to the
substantive decision of the immigration judge on the controlled substance offense and
his refusal to continue the hearing. The voluntary-departure claim focuses on an
entirely different alleged error. I would therefore subject this new claim to plain error
review.
II
I have some doubt that the error here was plain. The error occurred not in the
manner that the proceedings below were conducted, but rather in the 2002
immigration proceedings. In the collateral attack on those proceedings, the district
court essentially acted in an appellate capacity, and I do not think it can be said to
have denied due process by failing to anticipate an argument never made.
But more importantly, a defendant who claims on collateral attack that he was
denied due process because an immigration judge failed to advise him of his eligibility
for voluntary departure has the burden of proving not only that a due process violation
occurred, but also that he was “actually prejudiced” by the error. United States v.
Reyes-Bonilla, 671 F.3d 1036, 1048–49 (9th Cir. 2012). The government has
conceded that the immigration judge failed to advise Cuenca of his eligibility for pre-
4
conclusion voluntary departure. But, contrary to the majority’s conclusion, that due
process error is not enough to establish prejudice. Rather, Cuenca must also produce
some concrete evidence that he “would have availed himself of the procedural
protections denied him.” United States v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir.
1986). Admittedly, our case law requires only that the defendant establish that it was
“plausible” that he would have accepted voluntary departure, but the burden is
nonetheless on the Cuenca to produce some evidence supporting his claim. See
United States v. Esparza-Ponce, 193 F.3d 1133, 1138–39 (9th Cir. 1999)
(acknowledging that failing to advise an alien of his right to contact the Mexican
Consulate violated due process, but upholding the district court’s conclusion that the
defendant did not prove prejudice because he had “not demonstrated – nor even
alleged – that he would have contacted the consul if he had been informed of his right
to do so”); cf. United States v. Rangel-Gonzales, 617 F.2d 529, 532 (9th Cir. 1980)
(holding that defendant met his burden to show prejudice through an affidavit stating
that he would have contacted his consulate had he been made aware of his right to do
so).
Cuenca has entirely failed to meet this evidentiary burden. The record lacks
even an affidavit from Cuenca that if offered voluntary departure in 2002, he would
have accepted it.
5
The majority attempts to fill in this evidentiary void in two ways. First, it
conflates the government’s admission that Cuenca would have been eligible for
voluntary departure, which established the first prong of the prejudice analysis, with
a concession that he had also established the second prong, plausibility. Mem.
Disposition at 5. Second, the majority itself constructs reasons why Cuenca might
have accepted voluntary departure if offered. Id. at 6–7.
The majority’s speculation is not implausible. But one could equally well
speculate to the contrary. If opting for voluntary departure, Cuenca would have been
required to concede removability, 8 C.F.R. § 1240.26(b)(1)(i), and thus would have
abandoned his chief argument for remaining in the United States — that his California
conviction was not for a “controlled substance offense.” Moreover, his departure
would likely have been sooner if he chose voluntary departure than if the entire
administrative and judicial process were fully played out. The issue is not whether my
speculation is more plausible than that of the majority, but whether Cuenca himself
has established plausibility.
Moreover, even if Cuenca had made some record showing of plausibility, the
government would be allowed to attempt to rebut that showing. See United States v.
Gonzalez–Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003) (“Once Gonzalez makes a
prima facie showing of prejudice, the burden shifts to the government to demonstrate
6
that the procedural violation could not have changed the proceedings’ outcome.”). In
United States v. Melendez-Castro, 671 F.3d 950 (9th Cir. 2012), after concluding that
the defendant was eligible for voluntary departure but “never had a genuine
opportunity to apply for voluntary departure or to present evidence of the factors
favoring this relief,” we remanded to the district court to “fully analyze the issue of
prejudice” in the first instance. Id. at 954–55. The majority today denies the
government any real opportunity to challenge Cuenca’s assertions, concluding that the
government has not rebutted the reasons offered for the first time on appeal—largely
by the majority itself—to demonstrate plausibility. But, because the government did
not know that Cuenca would make a new argument on appeal, it could hardly have
rebutted it below. Even under the majority’s view, the government deserves an
opportunity to question Cuenca about the issue and determine whether he would have
accepted voluntary departure in light of the effect of such a strategy on his substantive
arguments, or whether he actually knew of the possibility of voluntary departure
through sources other than the immigration judge, but nonetheless rejected it.
7
III
For these reasons, I cannot conclude that the 2002 removal order was invalid.
I would affirm the judgment of the district court and respectfully dissent.1
1
In light of its disposition, the majority does not treat Cuenca’s other
arguments—neither of which, like his voluntary-departure due process claim, were
made below. Cuenca correctly asserts that the state law under which he was convicted
punishes more conduct than is encompassed within the federal definition of a
“controlled substance” offense in 8 U.S.C. § 1227(a)(2)(B)(i). Cuenca, however,
admitted during his plea colloquy in the state court, that he possessed
methamphetamine, which made him removable under 8 U.S.C. § 1227(a)(2)(B)(i).
The record thus established the requisite crime under the modified categorical
approach. See Descamps v. United States, 133 S. Ct. 2276, 2285 (2013).
Nor has Cuenca demonstrated that his attorney’s decision to pursue
expungement in state court rather than appeal the immigration judge’s removal order
to the BIA plausibly affected the outcome of his removal proceedings. Absent some
alteration of the crime of conviction in state court proceedings, Cuenca could not
escape removal under § 1227(a)(2)(B)(i). And, Cuenca was unsuccessful in the
expungement efforts.
8