United States v. Isaac Ramos

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-50059
Plaintiff-Appellee, D.C. No.
v.  3:07-cr-03402-
ISAAC RAMOS, IEG-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted
December 8, 2009—Pasadena, California
Filed September 24, 2010
Before: Stephen Reinhardt, Stephen S. Trott and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
16253
16256 UNITED STATES v. RAMOS
COUNSEL
Joan Kerry Bader, San Diego, California, for the defendant-
appellant.
Karen P. Hewitt, United States Attorney, Bruce R. Castetter,
Assistant United States Attorney, and Eric J. Beste, Assistant
United States Attorney, San Diego, California, for the
plaintiff-appellee.
OPINION
WARDLAW, Circuit Judge:
Isaac Ramos appeals the district court’s denial of his
motion to dismiss the indictment for unlawful reentry after a
prior deportation in violation of 8 U.S.C. § 1326, which he
collaterally attacked in his motion to dismiss. Ramos argues
that the Department of Homeland Security (“DHS”) and the
Immigration Judge (“IJ”) violated his due process rights and
the applicable regulation when they removed him through the
stipulated removal program. 8 U.S.C. § 1229a(d), 8 C.F.R.
UNITED STATES v. RAMOS 16257
§ 1003.25(b). He argues that the stipulated removal order
entered by an IJ at the Eloy Detention Center in Eloy, Ari-
zona, is invalid because he was not accorded his Fifth
Amendment due process rights and the deportation officers
and IJ failed to comply with the procedures set forth in 8
C.F.R. § 1003.25. Although we agree that the stipulated
removal proceedings denied Ramos due process of law and
violated the applicable regulation, we conclude that he suf-
fered no prejudice as a result, and affirm.1
I. FACTUAL AND PROCEDURAL BACKGROUND
Ramos is a citizen and native of Mexico. He first entered
the United States without inspection approximately twenty
years ago. He is married to a legal permanent resident, and
has two U.S. citizen children and one U.S. citizen stepchild.
Ramos was apprehended after crossing the United States-
Mexico border near Otay Mesa, California on November 21,
2007. A year and six months earlier, on May 11, 2006, Ramos
had been ordered removed under the “stipulated removal”
provision of 8 U.S.C. § 1229a(d).
A. Stipulated Removal Process
The stipulated removal provision allows an IJ to enter an
“order of removal stipulated to by the alien (or the alien’s rep-
resentative) and the [Immigration and Naturalization] Service.”2
8 U.S.C. § 1229a(d). An IJ’s ability to enter stipulated
removal orders “facilitates judicial efficiency in uncontested
1
The remaining issues presented in Ramos’s appeal are addressed in a
memorandum disposition filed concurrently with this opinion.
2
On March 1, 2003, the functions of the former Immigration and Natu-
ralization Service (“INS”) were transferred from the Department of Justice
to three agencies (the U.S. Immigration and Customs Enforcement, U.S.
Customs and Border Protection, and U.S. Citizenship and Immigration
Services) in the newly formed Department of Homeland Security
(“DHS”). See Homeland Security Act of 2002, Pub. L. No. 107-296, 116
Stat. 2135 (Nov. 25, 2002).
16258 UNITED STATES v. RAMOS
cases,” and serves to “alleviate overcrowded federal, state,
and local detention facilities.” Stipulated Requests for Depor-
tation or Exclusion Orders, 59 Fed. Reg. 24,976 (May 13,
1994).
The Department of Justice (“DOJ”) first promulgated a reg-
ulation implementing stipulated removal in 1995. 8 C.F.R.
§ 3.25. The regulation codified an IJ’s discretion to enter a
stipulated removal order without a hearing and in the absence
of the alien, but, out of due process concerns, limited the
availability of such orders only to aliens represented by coun-
sel at the time the stipulation was entered. See Stipulated
Requests for Deportation or Exclusion Orders, 60 Fed. Reg.
26,351-52 (May 17, 1995). The regulation provided further
procedural safeguards for aliens stipulating to their removal
by mandating that the IJ determine that the “represented
respondent/applicant voluntarily, knowingly, and intelligently
entered into a stipulated request for an order of deportation or
exclusion.” 8 C.F.R. § 3.25 (1995); see also Stipulated
Requests for Deportation or Exclusion Orders, 59 Fed. Reg.
at 24,976. As the DOJ noted, “the words ‘voluntarily, know-
ingly and intelligently’ . . . ensure maximum protection for
aliens entering into stipulations,” and protect those who can-
not “fully understand the ramifications of a stipulation” due
to limited English language skills. 60 Fed. Reg. at 26,351-52.
[1] In 1997, the DOJ amended the language of the regula-
tion to its current form, which governs Ramos’s removal pro-
ceedings.3 See Inspection and Expedited Removal of Aliens,
62 Fed. Reg. 10,312, 10,321-22 (Mar. 6, 1997). Like the for-
mer version of the regulation, 8 C.F.R. § 1003.25 provides an
IJ with discretion to “enter an order of deportation, exclusion
or removal stipulated to by the alien (or the alien’s representa-
3
The current version of the regulation, 8 C.F.R. § 1003.25, was previ-
ously codified at 8 C.F.R. § 3.25(b) (1997), but was redesignated at its
present location in 2003, without any alterations to the regulatory lan-
guage. See 68 Fed. Reg. 9830 (Feb. 28, 2003).
UNITED STATES v. RAMOS 16259
tive) and the Service.” Id. The amended regulation, however,
permits an IJ to enter stipulated orders of removal for aliens
without legal representation, and requires that the stipulation
include:
(1) An admission that all factual allegations con-
tained in the charging document are true and correct
as written;
(2) A concession of deportability or inadmissability
as charged;
(3) A statement that the alien makes no application
for relief under the [Immigration and Nationality]
Act;
(4) A designation of a country for deportation or
removal under section 241(b)(2)(A)(i) of the Act;
(5) A concession to the introduction of the written
stipulation of the alien as an exhibit to the Record of
Proceeding;
(6) A statement that the alien understands the conse-
quences of the stipulated request and that the alien
enters the request voluntarily, knowingly, and intelli-
gently;
(7) A statement that the alien will accept a written
order for his or her deportation, exclusion or removal
as a final disposition of the proceedings; and
(8) A waiver of appeal of the written order of depor-
tation or removal.
8 C.F.R. § 1003.25(b).
[2] The amended regulation provides additional procedural
safeguards for unrepresented aliens in stipulated removal pro-
16260 UNITED STATES v. RAMOS
ceedings by requiring that the IJ “determine that the alien’s
waiver is voluntary, knowing, and intelligent.” Id. As the DOJ
noted, this requirement
safeguards against an imprudent waiver of a formal
adjudication on the part of an unrepresented alien
. . . . If an immigration judge is confronted with a
stipulated request raising due process concerns, he or
she may examine that request in the context of a
hearing.
Inspection and Expedited Removal of Aliens, 62 Fed. Reg. at
10,322.
B. Ramos’s Stipulated Removal Proceedings
On May 9, 2006, DHS issued a warrant of arrest and a
Notice to Appear (“NTA”) on Ramos in Bakersfield, Califor-
nia. The NTA charged Ramos with removability for commis-
sion of a crime involving moral turpitude in violation of 8
U.S.C. § 1182(a)(2)(A)(i)(I); commission of a controlled sub-
stance violation in violation of 8 U.S.C. § 1182(a)(2)
(A)(i)(II); and presence in the United States without admis-
sion or parole in violation of 8 U.S.C. § 1182(a)(6)(A)(I). The
NTA also charged that Ramos had a prior conviction for pos-
session of methamphetamine, in violation of California Health
and Safety Code § 11377(a); a conviction for inflicting corpo-
ral injury, in violation of California Penal Code § 273.5(a);
and a conviction for false imprisonment in violation of Cali-
fornia Penal Code § 236.
On the same day, DHS transferred Ramos from Bakersfield
to the Eloy Detention Center (“Eloy”) in Eloy, Arizona. The
Eloy Detention Center houses and serves as a transfer point
for up to 1,500 alien detainees per day. At Eloy, DHS
employs deportation officers who are responsible for assisting
DHS’s Office of Chief Counsel in obtaining evidence, con-
ducting interviews with detainees, performing criminal his-
UNITED STATES v. RAMOS 16261
tory checks, and escorting detainees who have been ordered
removed back to their country of origin.
On May 11, 2006, deportation officers presented Ramos
with a form entitled “Stipulated Request for Removal Order
and Waiver of Hearing” (“Stipulated Removal form” or
“form”). The Stipulated Removal form distributed by officers
at Eloy contains a series of statements and admissions, written
first in English, and below that, translated into Spanish. The
form sets forth several stipulations on the part of the alien,
some of which are specified in 8 C.F.R. § 1003.25, and some
of which are not required by regulation. For example, in Para-
graph 4 the alien stipulates:
I have been advised of my right to be represented by
an attorney of my choice, at my own expense, during
these proceedings. I waive this right. I will represent
myself in these proceedings.
Also not required by the regulation is the stipulation in Para-
graph 5, that “I will be giving up the following legal rights
that I would have in a hearing before an Immigration Judge:
a) the right to question witnesses; b) the right to offer and to
object to evidence; c) the right to require the government to
prove my removability.”
In Paragraph 8, the alien waives any present eligibility for
relief from deportation:
I knowingly and intelligently waive my right to
apply for any relief or protection from removal for
which I may be eligible under the Immigration and
Nationality Act or any other provision of law. Such
relief and protection may include voluntary depar-
ture, adjustment of status, suspension of deportation
or cancellation of removal, registry, naturalization,
political asylum, withholding of removal, and pro-
tection under the Convention Against Torture.
16262 UNITED STATES v. RAMOS
Under Paragraph 13, the alien waives “appeal of the written
order of removal.”
By signing the form, the detained alien “admit[s] [to] all of
the factual allegations contained in the NTA,” concedes
deportability or inadmissibility as charged on the NTA, and
provides that he or she will accept a written order for removal
as a final disposition. The form also specifies that the entire
document has been “read to me in a language that I under-
stand” and that “I fully understand its consequences. I submit
this request for removal voluntarily, knowingly, and intelli-
gently.” See also 8 C.F.R. §§ 1003.25(b)(1), (2), (6), (7).
The district court held an evidentiary hearing on Ramos’s
motion to dismiss. Deportation Officer Christina Olson veri-
fied that she had met individually with Ramos on May 11,
2006 after he attended the group presentation and witnessed
him sign the Stipulated Removal form. By signing the form,
Ramos, who is not fluent in English and speaks Spanish,
admitted the allegations included in a second NTA, which
charged him with removability for presence in the United
States without admission or parole under 8 U.S.C.
§ 1182(a)(6)(A)(i).
Officer Olson testified that immigration enforcement agents
review detainees’ Alien Registration Files (“A-file”) upon
their arrival to select detainees for participation in the stipu-
lated removal program instead of scheduling an appearance
before the IJ. A detainee is selected for participation in stipu-
lated removal if he or she 1) is a citizen of Mexico, 2) has
been in the United States for less than ten years, and 3) has
been charged with illegal entry into the United States. Immi-
gration enforcement agents do not read the A-file further to
determine whether detainees selected for the stipulated
removal program are eligible for any relief from removal.
After detainees are selected for participation in the stipu-
lated removal program, deportation officers typically prepare
UNITED STATES v. RAMOS 16263
an NTA and a Stipulated Removal form for each individual.
Deportation officers then gather detainees selected for the
program for a group presentation. There, an immigration
enforcement agent explains in Spanish that a detainee has two
options: first, to accept stipulated removal, or second, to
appear before an IJ, where the detainee may ask to remain
legally in the United States or seek voluntary departure. The
agent also advises the group that under the stipulated removal
program, a detainee can be removed that very day; whereas
it could take anywhere from two to three weeks or longer to
appear before an IJ if the detainee chooses not to sign the
form. The agent then reads the text of the Stipulated Removal
form aloud in Spanish, and concludes the presentation. Next,
DHS deportation officers meet individually with each
detainee to determine whether he or she wants to sign the
Stipulated Removal form. Deportation officers do not review
the detainee’s A-file at any time before or during the individ-
ual meeting. No transcriber, interpreter, or attorney is present
during the detainee’s individual meeting with the deportation
officer.
Asked to describe her individual meeting with Ramos,
Officer Olson testified that at the outset, she asks a detainee
if he or she speaks English; if so, she continues in English,
and if not, she conducts the meeting in Spanish. Olson, how-
ever, is not fluent in Spanish, and her Spanish language edu-
cation was limited to “several classes” during her training
with DHS’s Bureau of Immigration and Customs Enforce-
ment (“ICE”).
Officer Olson also testified that during the individual meet-
ing, a deportation officer typically verifies the identity of the
detainee and information typed on the biographical informa-
tion sheet, and serves the NTA on the detainee. The deporta-
tion officer then determines whether the detainee wants to
sign the Stipulated Removal form by asking “whether or not
they want to have a court hearing or whether they want to be
deported that day.” When encountering Spanish-speaking
16264 UNITED STATES v. RAMOS
detainees, Olson asks in the Spanish language a question she
understands translates in English to “do you want to fight
your case or want to sign?” Officer Olson translated that
phrase into Spanish during the hearing. However, the Spanish
language court interpreter had difficulty comprehending the
question, advising the court that the statement was “nonsensi-
cal in part. . . I wouldn’t know how to translate certain parts
of that.” She also faulted Officer Olson’s Spanish pronuncia-
tion.
If Officer Olson feels that a detainee does not understand
her, she will try to clarify any questions, will ask another
agent to take over the meeting, or will not proceed with the
stipulated removal. Otherwise, she has the detainee sign the
Stipulated Removal form. Once signed, it is forwarded to the
DHS’s Office of Chief Counsel for approval. After approval,
DHS counsel submits the detainee’s Stipulated Removal
form. DHS also submits a form entitled “Concurrence to Stip-
ulated Request for Removal Order and Waiver of Hearing,”
which specifies that the government “concurs with the
Respondent’s request pursuant to 8 C.F.R. § 1003.25(b) for
the Immigration Judge to issue a stipulated removal order
without holding a hearing.” At that time, the IJ determines
whether to issue a final order of removal based on the form
and any other materials submitted by DHS. If the IJ issues an
order of removal, deportation officers typically remove the
detainee from the United States on the same day.
On the day of Ramos’s interview with Officer Olson, the
IJ issued a decision finding Ramos removable pursuant to
INA § 212(a)(6)(A)(i), and ordering him removed. The IJ
found that
In his stipulation, respondent states that he under-
stands the consequences of his request and that he
has entered his request voluntarily, knowingly, and
intelligently. The Court finds the alien’s waiver to be
voluntary, knowing, and intelligent. . . . The court
UNITED STATES v. RAMOS 16265
therefore, finds upon review of the charging docu-
ment and the written stipulation that he is removable
based upon clear and convincing evidence in the
form of his own admissions. Respondent makes no
application for relief from removal but instead
requests an order removing him from this country as
soon as possible.
DHS officers removed Ramos to Mexico by the end of the
day.
C. Ramos’s Collateral Attack on His Stipulated Removal
Following his November 2007 arrest, Ramos was indicted
by a grand jury for violation of 8 U.S.C. § 1326. Ramos pled
not guilty, and filed the motion to dismiss the indictment now
on appeal. Denying this motion, the district court first con-
cluded that Ramos’s stipulated removal order was valid under
United States v. Galicia-Gonzales, 997 F.2d 602 (9th Cir.
1993), placing the burden of proof to show an invalid waiver
upon Ramos. Although the district court found “some flaws”
in the 2006 stipulated removal proceedings, it concluded that
Ramos failed to meet his burden of proof because Officer
Olson would have not signed the Stipulated Removal form if
she had any doubts as to Ramos’s understanding of the rights
he was relinquishing. Alternatively, the court found no show-
ing of prejudice because Ramos was not, as he claimed, eligi-
ble for relief under the Immigration and Nationality Act
(“INA”) § 212(h), 8 U.S.C. § 1182(h). Following a bench
trial, the district court found Ramos guilty of violating 8
U.S.C. § 1326.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review a final judgment of the dis-
trict court pursuant to 28 U.S.C. § 1291. In United States v.
Lopez-Vasquez, 1 F.3d 751 (9th Cir. 1993), we held that “[a]
claim that a defect in a prior deportation order precludes reli-
16266 UNITED STATES v. RAMOS
ance on the deportation in a prosecution for violation of 8
U.S.C. § 1326 presents ‘mixed questions of law and fact
requiring us to exercise judgment about legal principles.’
Accordingly, we review [the] claims de novo.” Id. at 752(quoting United States v. Proa-Tovar, 975 F.2d 592, 594 (9th
Cir. 1992)). The petitioner in Lopez-Vasquez brought a collat-
eral challenge to his deportation order based on the invalidity
of a mass silent waiver of the right to appeal deportation.
Ramos brings a similar challenge to a defect in his waiver;
thus, the Lopez-Vasquez de novo standard of review governs.
We review the district court’s findings of fact for clear error.
United States v. Lazarevich, 147 F.3d 1061, 1065 (9th Cir.
1998).
III. DISCUSSION
A. Validity of Waiver of Appeal
[3] We must first determine whether Ramos validly
waived his right to appeal by signing the Stipulated Removal
form, which would preclude this collateral challenge to his
removal. “[A]n alien cannot collaterally attack an underlying
deportation order if he validly waived the right to appeal that
order.” United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.
2000). However, under 8 U.S.C. § 1326(d), a defendant may
collaterally attack the underlying removal order by showing
first, exhaustion of “any administrative remedies that may
have been available to seek relief against the order;” second,
that “the deportation proceedings at which the order was
issued improperly deprived the alien of the opportunity for
judicial review;” and third, that “the entry of the order was
fundamentally unfair.” 8 U.S.C. § 1326(d). An underlying
removal order is fundamentally unfair if an alien’s “due pro-
cess rights were violated by defects in the underlying deporta-
tion proceeding,” and if “he suffered prejudice as a result of
the defects.” United States v. Pallares-Galan, 359 F.3d 1088,
1095 (9th Cir. 2004) (internal quotation marks omitted).
UNITED STATES v. RAMOS 16267
A valid waiver of the right to appeal “must be both ‘consid-
ered and intelligent.’ ” Arrieta, 224 F.3d at 1079 (quoting
United States v. Estrada-Torres, 179 F.3d 776, 780-81 (9th
Cir. 1999)). The government bears the burden of proving
valid waiver in a collateral attack of the underlying removal
proceedings. Lopez-Vasquez, 1 F.3d at 753. We “indulge
every reasonable presumption against waiver,” and do “not
presume acquiescence in the loss of fundamental rights.” Id.(internal quotation marks omitted). Moreover, “the due pro-
cess inquiry focuses on whether [the defendant] personally
made a ‘considered and intelligent’ waiver of his appeal.”
United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1049 n.8
(9th Cir. 2004) (emphasis in original). The district court thus
erred in shifting the burden of proving valid waiver of the
right to appeal to Ramos.
We conclude that Ramos’s waiver of his right to appeal
was invalid for several independent reasons. As a threshold
matter, however, we note that the district court erred in con-
cluding that the validity of Ramos’s stipulated removal order
was controlled by our decision in Galicia-Gonzalez, 997 F.2d
602. In Galicia-Gonzalez, we held that an alien petitioner val-
idly conceded deportability and waived his rights to a hearing
and appeal through a stipulated agreement with the govern-
ment. However, unlike the petitioner in Galicia-Gonzalez,
who had received a full explanation of a stipulated removal
agreement from his counsel, and who had entered into the
stipulation through counsel, Ramos lacked the benefit of legal
representation.
[4] Ramos’s waiver of appeal and of the due process rights
specified in the Stipulated Removal form was not “considered
or intelligent” because he did not receive a competent Spanish
language translation of his right to appeal when he signed the
form. “It is long-settled that a competent translation is funda-
mental to a full and fair hearing. If an alien does not speak
English, deportation proceedings must be translated into a
16268 UNITED STATES v. RAMOS
language the alien understands.” Perez-Lastor v. INS, 208
F.3d 773, 778 (9th Cir. 2000).
We cannot conclude that waiver of rights, including the
right to appeal, was “considered or intelligent” without evi-
dence that a detainee was “able to understand the questions
posed to him” when put to the choice of foregoing all rights
or remaining in detention until he could appear before an IJ.
Id. The government argues that Ramos’s waiver was “consid-
ered and intelligent” because Ramos failed to give any indica-
tion to the deportation officer that he did not understand or
appreciate what he was signing. However, a deportation offi-
cer’s “feeling” that a detainee understood her broken attempts
to speak Spanish is insufficient to meet the government’s bur-
den. See Lopez-Vasquez, 1 F.3d at 754. Without the benefit of
“the services of an interpreter . . . [whose] capacity should be
unquestioned,” Perez-Lastor, 208 F.3d at 778, Ramos signed
away his right to appeal, to appear before an IJ, and to be rep-
resented by counsel in an individual meeting with a deporta-
tion officer who testified that she is not fluent in Spanish.
Given these circumstances, the government failed to meet its
burden of proving that Ramos’s waiver was not “considered
and intelligent.”
[5] Moreover, we cannot conclude that Ramos’s waiver
was “considered and intelligent” because the government has
not established by “clear and convincing evidence” that he
received adequate advisement of the consequences of his
waiver of appeal. Pallares-Galan, 359 F.3d at 1097. Here, an
uncounseled Spanish-speaking alien detainee did not have the
opportunity to appear before an IJ and was only advised of his
right to appeal by an immigration enforcement agent or
deportation officer. Even where an alien has the opportunity
for his case to be reviewed “by an individual who is inti-
mately familiar with immigration laws—as IJs no doubt are,”
Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir. 1989),
we have found an invalid waiver. An IJ’s failure to explore
waiver adequately with the petitioner “preclude[s] a purported
UNITED STATES v. RAMOS 16269
waiver from being ‘considered and intelligent.’ ” Pallares-
Galan, 359 F.3d at 1097. The “requirement that the IJ inform
an alien of his or her ability to apply for relief from removal
is mandatory, and failure to so inform the alien of his or her
eligibility for relief from removal is a denial of due process
that invalidates the underlying deportation proceeding.”
Ubaldo-Figueroa, 364 F.3d at 1050 (internal quotation marks
omitted); see also United States v. Muro-Inclan, 249 F.3d
1180, 1182 (9th Cir. 2001) (concluding same); Arrieta, 224
F.3d at 1079 (same); cf. United States v. Ahumada-Aguilar,
295 F.3d 943, 950 (9th Cir. 2002) (concluding that waiver is
not “considered and intelligent” where an IJ provides an erro-
neous interpretation of potential relief from deportation).
[6] Here, Ramos was not represented and never had the
benefit of appearing before an IJ, who, we presume, would
have “adequately conveyed both the alien’s appeal options
and the finality associated with waiving appeal.” In re
Rodriguez-Diaz, 22 I. & N. Dec. 1320, 1323 (BIA 2000); see
also 8 U.S.C. § 1229a(c)(5).4 Nor at any time in the stipulated
removal proceedings did Ramos receive the benefit of a
review of his potential eligibility for relief. Ramos thus lacked
the benefit of counsel or a hearing before the IJ in navigating
the “labyrinth” of our immigration laws, which we have
“termed ‘second only to the Internal Revenue Code in com-
plexity.’ ” Castro-O’Ryan v. INS, 847 F.2d 1307, 1312 (9th
Cir. 1988) (internal quotation marks omitted). Because Ramos
failed to receive the benefit of procedural safeguards neces-
sary to ensure a valid waiver of the right to appeal, we con-
clude that his waiver of appeal was invalid. See Ubaldo-
Figueroa, 364 F.3d at 1049 (“An alien can not make a valid
4
We therefore find unpersuasive the government’s argument that
Ramos’s waiver of appeal is “constitutionally indistinguishable” from that
in United States v. Estrada-Torres, 179 F.3d 776, 781 (9th Cir. 1999),
overruled on other grounds by United States v. Rivera-Sanchez, 247 F.3d
905 (9th Cir. 2001) (en banc). In that case, an IJ discussed the right to
appeal the deportation order with the defendant and specifically and indi-
vidually asked whether he wanted to appeal his deportation order.
16270 UNITED STATES v. RAMOS
waiver of his right to appeal a removal order if an IJ does not
expressly and personally inform the alien that he has the right
to appeal.”). Accordingly, we hold that Ramos’s waiver of his
right to appeal the underlying removal order was procedurally
defective and deprived him of the opportunity for meaningful
judicial review. See 8 U.S.C. §§ 1326(d)(1)-(2).
B. Validity of Waiver of Due Process Right to Counsel
Ramos also argues that his stipulated removal proceedings
deprived him of his right to counsel in violation of due pro-
cess. We agree.
[7] “Although there is no Sixth Amendment right to coun-
sel in an immigration hearing, Congress has recognized it
among the rights stemming from the Fifth Amendment guar-
antee of due process that adhere to individuals that are the
subject of removal proceedings.” Tawadrus v. Ashcroft, 364
F.3d 1099, 1103 (9th Cir. 2004). “ ‘Although IJs may not be
required to undertake Herculean efforts to afford the right to
counsel, at a minimum they must [(1)] inquire whether the
petitioner wishes counsel, [(2)] determine a reasonable period
for obtaining counsel, and [(3)] assess whether any waiver of
counsel is knowing and voluntary.’ ” Ram v. Mukasey, 529
F.3d 1238, 1241-42 (9th Cir. 2008) (alterations in original)
(quoting Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir.
2005)).
[8] Neither 8 U.S.C. § 1229a(d) nor 8 C.F.R. § 1003.25requires a waiver of the Fifth Amendment right to be repre-
sented by counsel in stipulated removal proceedings. The
Stipulated Removal form employed by DHS officials at Eloy,
however, does effect a waiver of the right to counsel. The
government argues that Ramos’s waiver of the right to coun-
sel was valid because he signed a written waiver later
reviewed by the IJ, unlike the petitioners in Ram and Tawa-
drus. In Ram, we concluded that an alien did not validly
waive his right to counsel because, at the hearing, the IJ failed
UNITED STATES v. RAMOS 16271
to adequately assess whether waiver by Ram was knowing
and voluntary. Ram, 528 F.3d at 1241-42. In Tawadrus, we
concluded that the waiver of the right to counsel was invalid
because the IJ failed to inform Tawadrus of the right to coun-
sel when his original attorney withdrew. Tawadrus, 364 F.3d
at 1103. We held that the IJ’s failure even to inquire as to
whether Tawadrus wanted an attorney present was an abuse
of discretion and a violation of due process. Id. at 1105. The
government’s attempt to distinguish Ram and Tawadrus on
the basis that in those cases, the waiver was verbal, and, here,
Ramos signed the waiver misses the point. The key question
is whether the waiver is “knowing and voluntary,” not
whether it is verbal or written. Moreover, alien petitioners in
both Ram and Tawadrus appeared before an IJ, who was both
charged with and able to assess whether the waiver was
knowing and voluntary. Ramos did not receive the benefit of
appearing before an IJ, and “ ‘at no time did [an IJ] direct any
questions to [Ramos] concerning the implications of’ pro-
ceeding without an attorney.” Ram, 529 F.3d at 1242 (quoting
Tawadrus, 364 F.3d at 1104) (first alteration in original). Fur-
thermore, Ramos did not receive a competent explanation of
his rights in a language he could understand. See Perez-
Lastor, 208 F.3d at 778. Given these circumstances, Ramos’s
signature on the Stipulated Removal form does not establish
that his waiver was knowing and voluntary. Accordingly, we
conclude that Ramos’s waiver of counsel was invalid and a
violation of his due process right to counsel.
C. Regulatory Violation
[9] We also conclude that the IJ violated 8 C.F.R.
§ 1003.25(b) by failing to determine whether his waiver was
“voluntary, knowing, and intelligent,” as required by the regu-
lation, and that his underlying removal is thus invalid. Id.“It is a well-known maxim that agencies must comply with
their own regulations.” Ramon-Sepulveda v. INS, 743 F.2d
1307, 1310 (9th Cir. 1984) (internal quotation marks omitted).
16272 UNITED STATES v. RAMOS
When determining whether an agency’s violation of a regula-
tion invalidates an underlying deportation, we must first
determine whether the regulation itself “serve[s] a purpose of
benefit to the alien.” United States v. Rangel-Gonzales, 617
F.2d 529, 530 (9th Cir. 1980). If the regulation serves a pur-
pose beneficial to the alien, “the violation invalidates the
deportation ‘only if the violation prejudiced the interests of
the alien which were protected by the regulation.’ ” Id. (quot-
ing United States v. Calderon-Medina, 591 F.2d 529, 531 (9th
Cir. 1979)).
8 C.F.R. § 1003.25(b) clearly serves to benefit aliens
ordered deported, excluded, or removed pursuant to the regu-
lation. As the agency’s own regulatory commentary states, the
requirement that an IJ determine that an alien’s waiver of his
right to a hearing before an IJ was “voluntary, knowing, and
intelligent” “safeguards against an imprudent waiver of a for-
mal adjudication on the part of an unrepresented alien. . . . If
an immigration judge is confronted with a stipulated request
raising due process concerns, he or she may examine that
request in the context of a hearing.” Inspection and Expedited
Removal of Aliens; Detention and Removal of Aliens, 62
Fed. Reg. at 10,312.
The government argues that the Stipulated Removal form,
which stated “I submit this request for removal voluntarily,
knowingly, and intelligently,” was a sufficient basis from
which the IJ could conclude that Ramos validly waived his
rights. However, the circumstances of Ramos’s stipulated
removal proceedings at Eloy, in which he was unrepresented
by counsel, show otherwise. Without any independent inquiry
of the petitioner, and depending solely on information pro-
vided by DHS, the IJ concluded that Ramos had “voluntarily,
knowingly, and intelligently” waived his due process rights.
As we have noted, “shortcuts frequently turn out to be mis-
takes.” Cano-Merida v. INS, 311 F.3d 960, 965 (9th Cir.
2002). Moreover, Ramos’s waiver of rights, including his
right to a hearing, was not knowing and intelligent. The gov-
UNITED STATES v. RAMOS 16273
ernment failed to give Ramos a competent explanation of the
Stipulated Removal form in a language he could understand.
See Perez-Lastor, 208 F.3d at 778. The government also
failed to advise Ramos adequately as to his rights to appeal
and to counsel and never advised him as to any potential
ground for relief from deportation. We therefore conclude that
DHS and the IJ failed to comply with the requirements of 8
C.F.R. § 1003.25(b).
D. Prejudice
[10] To prevail on a motion to dismiss an indictment on
the basis of an alleged due process defect in an underlying
deportation proceeding, a defendant must not only establish
that the defects in the deportation proceeding violated his due
process rights, but also show that he suffered prejudice as a
result of those defects. Ubaldo-Figueroa, 364 F.3d at 1048. A
defendant need not conclusively demonstrate that he or she
would have received relief to show prejudice, but must show
only that there were “plausible grounds for relief.” United
States v. Gonzales-Valerio, 342 F.3d 1051, 1054 (9th Cir.
2003). If the defendant is “barred from receiving relief, his
claim is not ‘plausible.’ ” Id. at 1056. A defendant must also
show prejudice to invalidate the underlying deportation where
he or she alleges the agency’s regulatory violation. Rangel-
Gonzales, 617 F.2d at 530.
[11] Although we conclude that DHS violated Ramos’s
right to due process in the underlying deportation, and that the
agency violated its own regulation in doing so, we conclude
that he suffered no prejudice as a result. To establish preju-
dice, Ramos contends only that he would have qualified for
relief under INA § 212(h), 8 U.S.C. § 1182(h), and presents
no other plausible grounds for relief. However, Ramos is sta-
tutorily ineligible for this relief. INA § 212(h) does not pro-
vide relief for aliens removed for illegal presence in the
United States without admission or parole in violation of 8
U.S.C. § 1182(a)(6)(A)(i), the ground upon which Ramos was
16274 UNITED STATES v. RAMOS
ultimately removed. Whether Ramos would be eligible for a
waiver of removal on the ground of his controlled substance
violation is therefore immaterial. Accordingly, we conclude
that Ramos was not prejudiced as a result of the due process
or regulatory violations in the underlying stipulated removal
proceedings, and affirm the district court’s denial of the
motion to dismiss the indictment on that basis.
IV. CONCLUSION
We conclude that Ramos’s waiver of the right to appeal
pursuant to the stipulated removal proceedings was not “con-
sidered and intelligent” and thus violated his right to due pro-
cess and rendering the waiver invalid. The government failed
to demonstrate that Ramos’s waiver of his right to counsel
was “knowing and voluntary,” therefore violating his due pro-
cess right to counsel. Finally, we conclude that the IJ violated
the plain requirements of 8 C.F.R. § 1003.25 by failing to
determine whether Ramos, who was unrepresented by coun-
sel, had “voluntarily, knowingly, and intelligently” entered
into the stipulation of removal. Because Ramos failed to show
prejudice resulting from these regulatory and due process vio-
lations, however, we affirm the district court’s denial of the
motion to dismiss the indictment.
AFFIRMED.