United States v. Jesus Valdez-Novoa

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. 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
Before: M. Margaret McKeown, Ronald M. Gould,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee;
Dissent by Judge McKeown
2 UNITED STATES V. VALDEZ-NOVOA
SUMMARY*
Criminal Law
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 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 (based on his conviction of reckless driving
causing great bodily injury) 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 the
defendant was not denied due process because the IJ’s
determination that he had been convicted of an aggravated
felony was not contrary to this court’s precedent at the time
the removal order was issued and was the product of a
reasonable reading of 18 U.S.C. § 16. Because the defendant
had been convicted of an aggravated felony, the panel
concluded that he was statutorily ineligible for voluntary
departure, and the IJ was under no obligation to inform him
of the existence of such relief for the proceedings to comport
with due process.
Alternatively, 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
error because the defendant has not shown that it is plausible
*
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
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).
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
government earlier conceded that there was a due process
violation, and 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.
4 UNITED STATES V. VALDEZ-NOVOA
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.
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
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
UNITED STATES V. VALDEZ-NOVOA 5
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 Valdez-Novoa was not denied
due process because the IJ’s determination that he had been
convicted of an aggravated felony was not contrary to our
precedent at the time the removal order was issued and was
the product of a reasonable reading of the statute. Because
Valdez-Novoa had been convicted of an aggravated felony,
he was statutorily ineligible for voluntary departure, and the
IJ was under no obligation to inform him of the existence of
such relief for the proceedings to comport with due process.
Alternatively, 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).
6 UNITED STATES V. VALDEZ-NOVOA
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
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
UNITED STATES V. VALDEZ-NOVOA 7
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
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
8 UNITED STATES V. VALDEZ-NOVOA
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.
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
UNITED STATES V. VALDEZ-NOVOA 9
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.
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.”
10 UNITED STATES V. VALDEZ-NOVOA
United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.
2001).
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
UNITED STATES V. VALDEZ-NOVOA 11
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
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
12 UNITED STATES V. VALDEZ-NOVOA
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
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.
B. Due Process Violation
As noted, 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 Arrieta,
224 F.3d at 1079. But an alien is not eligible for voluntary
departure if he has been convicted of an aggravated felony.
See 8 U.S.C. § 1229c(a)(1); 8 U.S.C. § 1227(a)(2)(A)(iii).
Valdez-Novoa contends that the IJ erred in concluding that he
had been convicted of an aggravated felony and thus erred in
failing to advise him of his apparent eligibility for voluntary
departure. The government disagrees, and it argues that
Valdez-Novoa was statutorily ineligible for voluntary
departure because the IJ correctly determined that he had
been convicted of an aggravated felony.1
1
The government did not raise this argument before the district court,
where it expressly conceded 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.” “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). This is a
pure question of law, and Valdez-Novoa was not negatively affected by
UNITED STATES V. VALDEZ-NOVOA 13
the government’s decision not to raise it before the district court. Because
the district court concluded that Valdez-Novoa was not prejudiced by any
alleged due process violation that occurred during his removal
proceedings, the parties would be in the same position before us if the
government had raised the point regardless of how the district court
resolved it.
The fact that the government conceded before the district court that
Valdez-Novoa experienced a due process violation does not preclude us
from resolving its argument on appeal. “‘We may consider an issue
conceded or neglected below if the issue is purely one of law and the
pertinent record has been fully developed.’” White v. McGinnis, 903 F.2d
699, 700 n.4 (9th Cir. 1990) (en banc) (emphasis added) (quoting United
States v. Gabriel, 625 F.3d 830, 832 (9th Cir. 1980)); see also Phillips v.
Ornoski, 673 F.3d 1168, 1190 n.17 (9th Cir. 2012). “It is immaterial
whether the issue was not tried in the district court because it was not
raised or because it was raised but conceded by the party seeking to revive
it on appeal.” United States v. Patrin, 575 F.2d 708, 712 (9th Cir. 1978);
see also Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1110
(9th Cir. 2010).
“Even when a case falls into one of the exceptions to the rule against
considering new arguments on appeal, we must still decide whether the
particular circumstances of the case overcome our presumption against
hearing new arguments.” Dream Palace v. Cnty. of Maricopa, 384 F.3d
990, 1005 (9th Cir. 2003). Our general presumption against considering
new arguments on appeal operates to “ensure that legal arguments are
considered with the benefit of a fully developed factual record, offers
appellate courts the benefit of the district court's prior analysis, and
prevents parties from sandbagging their opponents with new arguments on
appeal.” Id. Here, the issue before us does not require additional factual
development, and the district court’s decision would not have been
dispositive in light of its conclusion that Valdez-Novoa was not prejudiced
by the IJ’s failure to advise him of his apparent eligibility for voluntary
departure. Furthermore, Valdez-Novoa had ample opportunity to argue
that the IJ violated his right to due process before the government
conceded this point in the proceedings below and again in its reply brief
on appeal. We will exercise our discretion to reach the issue in order to
offer clarity to district courts, immigration judges, and aliens in future
14 UNITED STATES V. VALDEZ-NOVOA
An aggravated felony is “a crime of violence . . . for
which the term of imprisonment [is] at least one year.”
8 U.S.C. § 1101(a)(43)(F).2 In 1999, when the IJ issued the
removal order, we had yet to decide whether an offense
involving reckless conduct—such as felony reckless driving
causing great bodily injury—was a crime of violence. We
subsequently held that convictions under similar statutes
punishing the reckless use of force were crimes of violence.
See United States v. Ceron-Sanchez, 222 F.3d 1169, 1171–72
(9th Cir. 2000), overruled by Fernandez-Ruiz v. Gonzales,
466 F.3d 1121, 1129 (9th Cir. 2006) (en banc); United States
v. Grajeda-Ramirez, 348 F.3d 1123, 1124–25 (9th Cir. 2003),
overruled by Fernandez-Ruiz, 466 F.3d at 1129. But, in
2006, we reversed course and held that offenses involving the
reckless use of force are not crimes of violence. See
Fernandez-Ruiz, 466 F.3d at 1129. If Valdez-Novoa’s
removal order had been issued after Ceron-Sanchez was
decided in 2001 and before Fernandez-Ruiz was decided in
2006, then we would unquestionably follow Ceron-Sanchez
and Grajeda-Ramirez in applying § 1326(d) even though we
subsequently overruled these cases. See United States v.
Lopez-Velasquez, 629 F.3d 894, 895, 901 (9th Cir. 2010) (en
proceedings that present the same question. See, e.g., Emmert Indus.
Corp. v. Artisan Assocs., Inc., 497 F.3d 982, 986 (9th Cir. 2007).
2
As the government acknowledges, Valdez-Novoa’s 1996 conviction
for felony assault likely to cause great bodily injury is not an aggravated
felony because the term of imprisonment was not at least one year. He
was initially sentenced to 180 days’ imprisonment and eventually served
363 days after his probation was twice revoked. For this reason, the only
conviction that might qualify as an aggravated felony is his 1997
conviction for felony reckless driving causing great bodily injury.
UNITED STATES V. VALDEZ-NOVOA 15
banc); Vidal-Mendoza, 705 F.3d at 1017 (“[A]n IJ must
provide accurate information regarding an alien’s eligibility
for relief ‘under the applicable law at the time of his
deportation hearing,’ . . . [but] by the same token, an IJ need
not anticipate future ‘change[s] in law’ when determining an
alien’s ‘apparent eligibility’ for relief from removal.”
(quoting Lopez-Velasquez, 705 F.3d at 897, 901) (second
alteration in original)). In other words, our decision in
Fernandez-Ruiz does not apply retroactively to cases on
collateral review.
Valdez-Novoa correctly points out that we must evaluate
this question under the law as it existed in 1999 rather than as
it stands today or at any other point time. In short, the
subsequent fluctuations in our case law concerning whether
offenses that punish reckless conduct are crimes of violence
cannot decide this case. For this reason, Valdez-Novoa
argues that reckless driving causing great bodily injury is not
a crime of violence under the plain meaning of the phrase as
it is defined in 18 U.S.C. § 16.3 But it is not a due process
violation for an IJ to conclude, based solely on the text of
18 U.S.C. § 16, that reckless driving causing great bodily
injury is a crime of violence. In the absence of contrary
precedent from our court or the Supreme Court, we will not
disrupt an IJ’s reasonable reading of an ambiguous provision
when the decision is collaterally attacked under § 1326(d).
3
“The term ‘crime of violence’ means—(a) an offense that has as an
element the use, attempted use, or threatened use of physical force against
the person or property of another, or (b) any other offense that is a felony
and that, by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.” 18 U.S.C. § 16. The definition of “crime of
violence” is adopted in the Immigration and Nationality Act’s definition
of “aggravated felony” in 8 U.S.C. § 1101(a)(43)(F).
16 UNITED STATES V. VALDEZ-NOVOA
The IJ’s decision was plainly reasonable given that we
reached the same conclusion when interpreting similar
offenses involving reckless conduct in Ceron-Sanchez and
Grajeda-Ramirez, which were decided soon after the IJ
concluded that Valdez-Novoa was convicted of a crime of
violence. The IJ encountered a difficult question that had yet
to be resolved by our court and offered a reasonable
resolution that was consistent with the one we arrived at when
we first confronted the issue.
In Vidal-Mendoza, we rejected an argument similar to the
one raised by Valdez-Novoa in part because it “would
effectively transform a § 1326(d) collateral challenge into a
direct appeal.” Vidal-Mendoza, 705 F.3d at 1019. Valdez-
Novoa could have appealed to the Board of Immigration
Appeals (BIA) and then filed a petition for review with this
court if he wished to advance his argument that the IJ erred in
determining that he had been convicted of a crime of
violence. Cf. Alvarenga-Villalobos v. Ashcroft, 271 F.3d
1169, 1173 (9th Cir. 2001) (rejecting the argument, in the
context of deciding a petition for habeas corpus, that an alien
who had unlawfully reentered the U.S. in violation of § 1326
“did not have meaningful judicial review available to him at
the time of the IJ’s original ruling because the law at the time
was unfavorable to him” by reasoning that the alien “had the
right to appeal his removal order to the BIA and, if
unsuccessful there, to this court”). Valdez-Novoa could have
later attempted to take advantage of our favorable decision in
Fernandez-Ruiz. Cf. Lopez-Velasquez, 629 F.3d at 899–900
(“[W]hen intervening law renders an alien eligible for
discretionary relief for which he was ineligible at the time of
his deportation hearing, the proper remedy is for the [alien]
. . . to file a motion to reopen.” (quotation marks and citation
omitted) (second alteration and omission in original)).
UNITED STATES V. VALDEZ-NOVOA 17
Instead of pursuing the available administrative and judicial
remedies, Valdez-Novoa waited until he was charged with
violating § 1326(a) before deciding to collaterally attack the
IJ’s determination by asking us to stand in the shoes of an IJ
in 1999. Valdez-Novoa advocates for an approach that
would, in effect, deem any decision by an IJ susceptible to
collateral attack unless there is circuit precedent squarely on
point at the time the decision is rendered. We decline to
convert § 1326(d) into a mechanism for invalidating removal
orders that are not contrary to circuit precedent and are based
on a reasonable reading of the statute at issue.
We hold that Valdez-Novoa was not deprived of his due
process rights when the IJ determined that he had been
convicted of an aggravated felony and accordingly concluded
that he was ineligible for voluntary departure relief.
Although this decision is sufficient to dispose of Valdez-
Novoa’s collateral attack on his removal order, we next
conclude that, in the alternative, Valdez-Novoa was not
prejudiced by any alleged due process violation.
C. 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 also 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 eligibility for relief, the alien must still
establish prejudice under the second prong of § 1326(d)(3).”
(internal quotation marks and citations omitted)). Even
assuming arguendo that Valdez-Novoa’s removal
proceedings did not comport with due process because the IJ
18 UNITED STATES V. VALDEZ-NOVOA
did not advise him of his apparent eligibility for voluntary
departure relief, 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
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
UNITED STATES V. VALDEZ-NOVOA 19
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
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,
20 UNITED STATES V. VALDEZ-NOVOA
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
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
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
UNITED STATES V. VALDEZ-NOVOA 21
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 *9.4
4
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
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.
22 UNITED STATES V. VALDEZ-NOVOA
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
§ 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
UNITED STATES V. VALDEZ-NOVOA 23
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
(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,
24 UNITED STATES V. VALDEZ-NOVOA
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
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
UNITED STATES V. VALDEZ-NOVOA 25
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
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.
26 UNITED STATES V. VALDEZ-NOVOA
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
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
UNITED STATES V. VALDEZ-NOVOA 27
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
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
28 UNITED STATES V. VALDEZ-NOVOA
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
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
UNITED STATES V. VALDEZ-NOVOA 29
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
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
30 UNITED STATES V. VALDEZ-NOVOA
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
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)).
UNITED STATES V. VALDEZ-NOVOA 31
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
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,
32 UNITED STATES V. VALDEZ-NOVOA
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).
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
UNITED STATES V. VALDEZ-NOVOA 33
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
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);
34 UNITED STATES V. VALDEZ-NOVOA
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
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
UNITED STATES V. VALDEZ-NOVOA 35
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
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
36 UNITED STATES V. VALDEZ-NOVOA
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
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.”).
UNITED STATES V. VALDEZ-NOVOA 37
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
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
38 UNITED STATES V. VALDEZ-NOVOA
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
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
UNITED STATES V. VALDEZ-NOVOA 39
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
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
40 UNITED STATES V. VALDEZ-NOVOA
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
conclude that the IJ’s June 11, 1999, order deeming Valdez-
Novoa removable is a valid predicate to his conviction for
violating § 1326(a). The IJ’s determination that Valdez-
Novoa had been convicted of an aggravated felony and was
therefore statutorily ineligible for voluntary departure does
not constitute a due process violation because it was not
contrary to our precedent at the time the removal order was
entered and involved a reasonable reading of 18 U.S.C. §16.
Alternatively, even if we assume arguendo that the IJ erred
in determining that Valdez-Novoa was not apparently eligible
for voluntary departure relief, we hold that Valdez-Novoa
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
§ 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.
UNITED STATES V. VALDEZ-NOVOA 41
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. I write separately because the
government earlier conceded that there was a due process
violation, and 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.
The majority reasons that we may reach the government’s
novel argument under an exception permitting us, in certain
conditions, to reach “[i]ssues not presented to the district
42 UNITED STATES V. VALDEZ-NOVOA
court . . . [and presented] for the first time on appeal.” United
States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990). But
this is not an issue that is being raised for the first time on
appeal. To the contrary, the issue was squarely before the
district court, and the government affirmatively abandoned it.
Waiver or judicial estoppel are the appropriate doctrines. To
ignore those doctrines is to permit a party to relitigate an
issue already abandoned.1
Nor does this situation fall, as the government suggests,
under the intervening law exception. The government argues
that the law changed between the district court proceeding in
2011 and this appeal, citing United States v. Vidal-Mendoza,
705 F.3d 1012 (9th Cir. 2013). This argument fails because
Vidal-Mendoza did not “fundamentally alter[] the applicable
law.” Indeed, the language the government cites from Vidal-
Mendoza comes from United States v. Lopez-Velasquez,
629 F.3d 894 (9th Cir. 2010) (en banc), which was decided
three years earlier and before Valdez-Novoa was even
1
See, e.g., Export Grp. v. Reef Indus., Inc., 54 F.3d 1466, 1470-71 (9th
Cir. 1995) (holding that a party waived the right to allege contrary facts
on appeal, e.g. that defendant was not an agent or instrumentality of the
Mexican government for sovereign immunity purposes, where the party
alleged that the defendant was an agent or instrumentality in its
complaint); see also New Hampshire v. Maine, 532 U.S. 742, 749 (2001)
(noting that “judicial estoppel generally prevents a party from prevailing
in one phase of a case on an argument and then relying on a contradictory
argument to prevail in another phase”) (internal quotation marks omitted);
id. at 750 (noting that the purpose of estoppel is to “prohibit[] parties from
deliberately changing positions according to the exigencies of the
moment” (internal quotation marks omitted)).
UNITED STATES V. VALDEZ-NOVOA 43
indicted.2 The government should not be permitted to
resurrect on appeal an argument that it affirmatively
jettisoned before the district court.
We should not countenance a change in position simply
because the government has changed its mind. To do so
would make every appeal a jump ball situation in which the
appeal is just another chance to raise a new issue and tip the
litigation game in one party’s favor without regard to what
happened in the trial court. This approach is particularly
unfair when the appellee adopts a contradictory position on
appeal, since the appellant has no warning and cannot tailor
its opening brief to meet the argument. The circumstance here
is nothing more than the government’s created “exigenc[y] of
the moment.” New Hampshire v. Maine, 532 U.S. 742, 750
(2001). To the extent we have discretion to entertain the
government’s about-face, we should decline to do so here. To
do otherwise makes a sham of the principles of waiver and
estoppel.
The majority concludes, in the alternative, that Valdez-
Novoa was not prejudiced by the due process violation. I
likewise 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.
2
Because, in my view, Valdez-Novoa had not “previously been lawfully
. . . removed,” I would likewise hold that the fourth element of the crime
of illegal reentry here was not satisfied, United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc), for purposes of
the corpus delicti rule.
44 UNITED STATES V. VALDEZ-NOVOA
2004) (quoting United States v. Arrieta, 224 F.3d 1076, 1079
(9th Cir. 2000)).3
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.
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
3
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).
UNITED STATES V. VALDEZ-NOVOA 45
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
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
46 UNITED STATES V. VALDEZ-NOVOA
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.4
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
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
4
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.
UNITED STATES V. VALDEZ-NOVOA 47
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
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.
48 UNITED STATES V. VALDEZ-NOVOA
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.