United States v. Victor Raya-Vaca

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50129
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-05261-IEG-1
VICTOR MANUEL RAYA-VACA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Senior District Judge, Presiding
Argued and Submitted
June 5, 2014—Pasadena, California
Filed November 10, 2014
Before: Stephen Reinhardt, Raymond C. Fisher,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia
2 UNITED STATES V. RAYA-VACA
SUMMARY*
Criminal Law
The panel reversed the district court’s denial of a motion
to dismiss an information charging, and the defendant’s
conviction of, illegal reentry after having been removed in
violation of 8 U.S.C. § 1326, and remanded.
Given the Supreme Court’s repeated pronouncement that
the Due Process Clause applies to all who have entered the
United States – legally or not – and given the clear fact of the
defendant’s entry, the panel held that the defendant was
entitled to expedited removal proceedings that conformed to
the dictates of due process. The panel held that an
immigration officer’s failure, during the defendant’s
expedited removal proceedings, to advise the defendant of the
charge against him and to permit him to review the sworn
statement prepared by the officer violated the defendant’s due
process rights to notice and an opportunity to respond.
The panel held that the defendant suffered prejudice as a
result of the entry of the removal order because he could
plausibly have been granted relief in the form of withdrawal
of his application for admission. The panel concluded that
the removal order was, accordingly, fundamentally unfair and
cannot serve as the predicate for his conviction under § 1326.
*
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. RAYA-VACA 3
COUNSEL
Chloe S. Dillon (argued), Federal Defenders of San Diego,
Inc., San Diego, California, for Defendant-Appellant.
Mark R. Rehe (argued), Assistant United States Attorney;
Laura E. Duffy, United States Attorney; Bruce R. Castetter,
Assistant United States Attorney, San Diego, California, for
Plaintiff-Appellee.
OPINION
MURGUIA, Circuit Judge:
Victor Manuel Raya-Vaca appeals from a judgment of
conviction following a conditional plea of guilty to one count
of illegal reentry after having been removed in violation of
8 U.S.C. § 1326. In 2011, Raya-Vaca was arrested while in
the United States, subjected to expedited removal proceedings
under 8 U.S.C. § 1225, and removed; he was later found in
the United States and again arrested. He collaterally attacks
the removal order entered against him in 2011, upon which
his conviction under § 1326 was predicated. Raya-Vaca
contends that his expedited removal proceedings did not
comport with due process because, among other errors, the
immigration officer who entered the removal order failed to
provide Raya-Vaca with notice of the charge against him and
an opportunity to respond. Raya-Vaca further asserts that he
suffered prejudice as a result. We agree. Accordingly, we
reverse the district court’s denial of Raya-Vaca’s motion to
dismiss the information and the subsequent conviction.
4 UNITED STATES V. RAYA-VACA
Factual and Procedural History
I. Background on Raya-Vaca
Raya-Vaca, a 33-year-old native and citizen of Mexico,
first came to the United States at approximately the age of
six. His mother brought him and his siblings to join his
father, who at the time was living and working in Salinas,
California. While his parents worked in agriculture, Raya-
Vaca attended school and, after turning eighteen, held various
full-time jobs. At age twenty-four, he began a relationship
with Trisha, a natural-born United States citizen. The two
lived together for seven years before Raya-Vaca’s removal,
and they have two children who are United States citizens.
Raya-Vaca’s brother is also a United States citizen.
While in California, Raya-Vaca was convicted of three
misdemeanors. In 2003, he was convicted of misdemeanor
burglary in violation of California Penal Code section 459
and sentenced to ten days in jail and three years of probation.
In 2010, he was convicted of obstruction of a police officer in
violation of California Penal Code section 148(a)(1) and false
identification to a police officer in violation of California
Penal Code section 148.9(a), for which he served three days
in jail and three years of probation.
Raya-Vaca has also had prior contact with immigration
authorities. Immigration officials sent him to Mexico in
2009, after which he sought to reenter the United States in
March 2009, May 2009, June 2009, September 2009,
November 2009, and September 2010. On three of those
occasions, some of the individuals traveling with Raya-Vaca
identified him as a smuggler. With the exception of his
attempted reentry in September 2009, Raya-Vaca returned
UNITED STATES V. RAYA-VACA 5
voluntarily to Mexico—and therefore suffered no formal
immigration consequences, such as a removal order—after
each attempted entry. After attempting to reenter on
September 19, 2009, however, Raya-Vaca stipulated to
removal and waived his right to a hearing; an immigration
judge (IJ) then considered Raya-Vaca’s written
representations of waiver sufficient to find him removable
and issued an order of removal on September 22, 2009.
II. Raya-Vaca’s July 2011 Reentry and Removal Order
On July 24, 2011, Raya-Vaca entered the United States by
“walking through the mountains,” with the intention of
returning to Salinas to join his family. He was apprehended
the following day near the State Route 94 Border Patrol
checkpoint outside Potrero, California. Immigration officials
initiated expedited removal proceedings pursuant to 8 U.S.C.
§ 1225.
A. Expedited Removal Proceedings Under 8 U.S.C.
§ 1225
An expedited removal proceeding under 8 U.S.C. § 1225
allows immigration officers to (1) determine whether certain
aliens are inadmissible, and (2) enter removal orders,
generally without hearing or further review.
Two classes of individuals are subject to expedited
removal proceedings. Originally, only aliens “arriving” in the
United States were subject to the proceedings. However, the
Department of Homeland Security (DHS) has expanded the
reach of expedited removal proceedings to aliens who have
entered the United States, as long as they (1) “are physically
present in the U.S. without having been admitted or paroled,”
6 UNITED STATES V. RAYA-VACA
(2) are discovered “within 100 air miles” of the United States
border, and (3) cannot establish that they have been
“physically present in the U.S.” for the fourteen days prior to
the encounter with immigration authorities. Designating
Aliens For Expedited Removal, 69 Fed. Reg. 48877-01,
48880 (Aug. 11, 2004). All such aliens are deemed
“applicants for admission” into the United States, regardless
of whether they seek to enter at a port of entry or have
already entered the country. 8 U.S.C. § 1225(a)(1).
During an expedited removal proceeding, an immigration
officer must conduct an inspection and determine whether the
alien is inadmissible because the alien (1) has made a
material misrepresentation to gain admission into the United
States, (2) has “falsely represent[ed]” himself to be a United
States citizen, or (3) does not possess a “valid entry
document.” See 8 U.S.C. § 1225(a)(3), (b)(1)(A)(i); see also
id. § 1182(a)(6)(C)(i), (a)(6)(c)(ii)(I), (a)(7)(A)(i). When
making a finding of inadmissibility, the examining
immigration officer must “create a record of the facts of the
case and statements made by the alien.” 8 C.F.R.
§ 235.3(b)(2)(i). The officer “shall . . . have the alien read (or
have read to him or her) the statement.” Id. Moreover, the
officer “shall advise the alien of the charges against him or
her on Form I-860, Notice and Order of Expedited Removal,
and the alien shall be given an opportunity to respond to those
charges in the sworn statement.” Id. Then, if the officer
determines the alien to be inadmissible, “the officer shall
order the alien removed from the United States without
further hearing or review unless the alien indicates either an
intention to apply for asylum . . . or a fear of persecution.”
8 U.S.C. § 1225(b)(1)(A)(i).
UNITED STATES V. RAYA-VACA 7
Unless an alien professes a fear of persecution or claims
to be a lawful permanent resident (LPR), an expedited
removal order “is not subject to administrative appeal.” Id.
§ 1225(b)(1)(C). However, the Attorney General has the
discretion to provide a type of statutory relief to certain
aliens: withdrawal of application for admission. See id.
§ 1225(a)(4). When an individual is permitted to “withdraw”
his application for admission, he may leave voluntarily and
without a removal order, and thus without facing formal
immigration consequences.1 See 8 C.F.R. § 1235.4.
B. Raya-Vaca’s Expedited Removal Proceedings
Raya-Vaca faced expedited removal proceedings because
he was present in the United States without admission, had
been discovered within 100 miles of the border, and could not
establish that he had been present in the United States for the
prior fourteen days. See Designating Aliens For Expedited
Removal, 69 Fed. Reg. at 48880.
During Raya-Vaca’s expedited removal proceedings,
Border Patrol Agent Alberto Baca interviewed Raya-Vaca in
English and prepared a Record of Sworn Statement. Raya-
Vaca then signed an acknowledgment that he had read the
Record of Sworn Statement (the Jurat). Agent Baca found
Raya-Vaca inadmissible and subject to removal because he
had illegally entered the United States without inspection and
was not in possession of any valid documentation permitting
him to enter. Agent Baca ordered that Raya-Vaca be
removed from the United States.
1
As noted earlier, any individual subjected to expedited removal
proceedings is deemed to have applied for admission, even if he sought to
enter or entered the United States illegally. See 8 U.S.C. § 1225(a)(1).
8 UNITED STATES V. RAYA-VACA
III. Proceedings Before the District Court
On November 27, 2012, a Border Patrol agent arrested
Raya-Vaca and several other individuals about seven miles
north of the United States-Mexico border, near Tecate,
California. When Raya-Vaca admitted that he was a Mexican
citizen with no valid entry documents, the agent arrested
Raya-Vaca and transported him to a Border Patrol station.
On December 27, 2012, the Government charged Raya-
Vaca by information with one count of illegal reentry after
having been removed from the United States, in violation of
8 U.S.C. § 1326(a).
Raya-Vaca moved to dismiss the information under
8 U.S.C. § 1326(d), asserting that no valid removal order
existed upon which the information could be predicated.
Raya-Vaca contended that neither the 2009 stipulated
removal order nor the 2011 expedited removal order could
serve as a valid predicate for the prosecution under 8 U.S.C.
§ 1326. The Government disclaimed any intent to rely on the
2009 stipulated removal order as a predicate element for the
§ 1326 charge. Instead, the Government contended that
Raya-Vaca had no plausible relief from his 2011 removal
order and thus that he suffered no prejudice attributable to
any due process violation at his 2011 expedited removal
proceeding. See United States v. Barajas-Alvarado, 655 F.3d
1077, 1089 (9th Cir. 2011) (stating that to show prejudice, an
alien must show that he had plausible grounds for relief).
Therefore, according to the Government, Raya-Vaca’s
challenge under § 1326(d) to his 2011 removal order could
not succeed.
UNITED STATES V. RAYA-VACA 9
The district court denied Raya-Vaca’s motion to dismiss
the information. Given the Government’s failure to argue
that no due process violation occurred, the district court
assumed that Raya-Vaca’s due process rights were violated
in the course of his 2011 expedited removal proceedings and
looked to whether an immigration official would plausibly
have exercised his discretion to grant Raya-Vaca relief in the
form of withdrawal of his application for admission. After
weighing the factors outlined in the Immigration and
Naturalization Service’s (INS) Inspector’s Field Manual,
which discusses when an official should permit an alien to
withdraw his application for admission, the district court
deemed it implausible that Raya-Vaca would have been
granted such relief and thus concluded he could not show
prejudice.2
Raya-Vaca entered a conditional guilty plea, preserving
his right to appeal the district court’s denial of his § 1326(d)
motion. The district court sentenced him to time served (108
days in prison) and one year of supervised release. The
district court entered judgment on March 15, 2013, and Raya-
Vaca filed a timely notice of appeal.
Standard of Review
We review “a denial of a motion to dismiss an 8 U.S.C.
§ 1326 indictment de novo when the motion is based upon . . .
alleged due process defect[s] in the underlying deportation
proceeding.” United States v. Camacho-Lopez, 450 F.3d 928,
2
The district court rejected the standard for prejudice proffered by the
Government—that laid out in Matter of Gutierrez, 19 I. & N. Dec. 562
(BIA 1988). The Government does not argue on appeal that the prejudice
standard from Matter of Gutierrez should apply.
10 UNITED STATES V. RAYA-VACA
929 (9th Cir. 2006) (internal quotation marks omitted). We
review for clear error the district court’s findings of fact. Id.
Discussion
For a defendant to be convicted of illegal reentry under
8 U.S.C. § 1326, the Government must establish that the
defendant “left the United States under order of exclusion,
deportation, or removal, and then illegally reentered.”3
United States v. Barajas-Alvarado, 655 F.3d 1077, 1079 (9th
Cir. 2011).
A defendant charged under § 1326 has a due process right
“to collaterally attack his removal order because the removal
order serves as a predicate element of his conviction.” United
States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.
2004). To sustain a challenge to an indictment (or
information) under § 1326, a defendant must demonstrate that
(1) he exhausted the administrative remedies available for
seeking relief from the predicate removal order; (2) the
deportation proceedings “improperly deprived [him] of the
opportunity for judicial review”; and (3) the removal order
was “fundamentally unfair.” 8 U.S.C. § 1326(d). To satisfy
the third prong—that the order was fundamentally unfair—
the defendant bears the burden of establishing both that the
“deportation proceeding violate[d] [his] due process rights”
and that the violation caused prejudice. United States v.
Leon-Leon, 35 F.3d 1428, 1431 (9th Cir. 1994).
3
As it did before the district court, the Government relies solely on
Raya-Vaca’s 2011 removal order (not on his 2009 stipulated removal
order) as a predicate removal order for his conviction under § 1326.
UNITED STATES V. RAYA-VACA 11
I. Administrative Exhaustion and Deprivation of
Judicial Review
As the district court recognized and as the Government
concedes, the statute governing expedited removal
proceedings afforded Raya-Vaca no opportunity for
administrative or judicial review. See, e.g., 8 U.S.C.
§ 1225(b)(1)(C) (“Except as provided [in the subparagraph on
credible-fear interviews], a removal order . . . is not subject
to administrative appeal . . . .”); id. § 1225(b)(1)(A)(i) (“If an
immigration officer determines that an alien . . . who is
arriving in the United States . . . is inadmissible . . . , the
officer shall order the alien removed from the United States
without further hearing or review . . . .” (emphasis added));
see also Barajas-Alvarado, 655 F.3d at 1082 (“[T]he
[Immigration & Nationality Act (INA)] precludes meaningful
judicial review of the validity of the proceedings that result in
an expedited removal order.”). We therefore conclude that
Raya-Vaca exhausted all available administrative remedies
and was deprived of the opportunity for judicial review.
II. Due Process Violation
Raya-Vaca must next establish that the removal order was
fundamentally unfair—meaning, in part, that the expedited
removal proceedings as conducted failed to comply with the
requirements of due process. See 8 U.S.C. § 1326(d)(3);
Leon-Leon, 35 F.3d at 1431. To this end, he asserts that he
suffered three distinct due process violations during his 2011
expedited removal proceedings: (1) the immigration officer’s
failure to inform Raya-Vaca (in violation of DHS regulations)
of the charge of inadmissibility he faced and to read to him
(or allow him to read) his sworn statement; (2) the officer’s
failure to advise Raya-Vaca of the possibility of withdrawing
12 UNITED STATES V. RAYA-VACA
his application for admission; and (3) the officer’s failure to
afford Raya-Vaca the opportunity to consult with counsel.
A. Applicability of the Due Process Clause
We first confront the threshold question whether the Due
Process Clause, with its attendant protections, applied to
Raya-Vaca at the time of his expedited removal proceedings.
The Supreme Court has categorically declared that once
an individual has entered the United States, he is entitled to
the protection of the Due Process Clause.4 In Zadvydas v.
Davis, the Supreme Court considered the constitutionality of
indefinitely detaining aliens who were once admitted to the
United States but later ordered removed. 533 U.S. 678, 682
(2001). In holding unconstitutional the indefinite detention
of an alien present within the United States, the Court
distinguished the situation at hand from one involving an
alien seeking entry into the country:
The distinction between an alien who has
effected an entry into the United States and
one who has never entered runs throughout
immigration law. . . . [O]nce an alien enters
the country, [his] legal circumstance changes,
for the Due Process Clause applies to all
“persons” within the United States, including
aliens, whether their presence here is lawful,
unlawful, temporary, or permanent.
4
The Due Process Clause of the Fifth Amendment provides that “[n]o
person shall be . . . deprived of life, liberty, or property, without due
process of law.”
UNITED STATES V. RAYA-VACA 13
Id. at 693 (citations omitted). Similarly, when considering
whether certain conditions could be placed on an alien’s
eligibility for federal medical insurance, the Supreme Court
stated,
There are literally millions of aliens within the
jurisdiction of the United States. The Fifth
Amendment, as well as the Fourteenth
Amendment, protects every one of these
persons from deprivation of life, liberty, or
property without due process of law. Even
one whose presence in this country is
unlawful, involuntary, or transitory is entitled
to that constitutional protection.
Mathews v. Diaz, 426 U.S. 67, 69, 77 (1976) (citation
omitted); see also, e.g., Shaughnessy v. United States ex rel.
Mezei, 345 U.S. 206, 212 (1953) (“It is true that aliens who
have once passed through our gates, even illegally, may be
expelled only after proceedings conforming to . . . due
process of law.”). This long line of precedent admits of no
exception: an alien who has entered the United States is
guaranteed due process protections.5
Here, there is no dispute that Raya-Vaca had entered the
United States in July 2011 before he was apprehended near
the State Route 94 Border Patrol checkpoint, outside Potrero,
California, within the borders of the United States. Even an
5
Aliens who have entered the country are thus distinct from aliens at a
port of entry, over whom Congress has plenary power, see Kleindienst v.
Mandel, 408 U.S. 753, 766 (1972), and for whom the process prescribed
by Congress constitutes due process, see United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537, 544 (1950).
14 UNITED STATES V. RAYA-VACA
alien who has run some fifty yards into the United States has
entered the country. See United States v. Martin-Plascencia,
532 F.2d 1316, 1317–18 (9th Cir. 1976) (affirming
adjudication of illegal entry for alien who had avoided
inspection at the border and had run into the country before
being apprehended); see also Matter of Z-, 20 I. & N. Dec.
707, 713–14 (BIA 1993) (finding that alien had entered
country when he disembarked from his vessel “onto dry land
within the territorial boundaries of the United States at an
area not designated as a port of entry,” after which he “fled
for some distance into the interior”).
Heeding, as we must, the Supreme Court’s repeated
pronouncement that the Due Process Clause applies to all
who have entered the United States—legally or not—and
given the clear fact of Raya-Vaca’s entry, we hold that Raya-
Vaca was entitled to expedited removal proceedings that
conformed to the dictates of due process.6
B. Due Process Right to Notice and Opportunity to
Respond
Our conclusion that the Due Process Clause applied to
Raya-Vaca, however, does not end the inquiry. Raya-Vaca
contends that the immigration officer conducting the
expedited removal proceedings failed to advise Raya-Vaca of
the charge against him and to read to him (or permit him to
read) the sworn statement the officer prepared, in violation of
DHS regulations and Raya-Vaca’s due process rights. We
6
There is no dispute that Raya-Vaca faced the deprivation of a liberty
interest during his expedited removal proceeding. See Flores-Chavez v.
Ashcroft, 362 F.3d 1150, 1161 (9th Cir. 2004) (declaring that “[a]n alien
facing deportation confronts the loss of a significant liberty interest”).
UNITED STATES V. RAYA-VACA 15
must determine whether Raya-Vaca indeed had such due
process rights and, if so, whether they were violated during
the 2011 expedited removal proceedings.
The regulations governing expedited removal proceedings
codify, in mandatory terms, the immigration officer’s duty to
inform the alien of the charge against him and to allow the
alien to review the sworn statement prepared in his name.
See 8 C.F.R. § 235.3(b)(2)(i) (“The examining immigration
officer shall advise the alien of the charges against him or her
. . . , and the alien shall be given an opportunity to respond to
those charges in the sworn statement.”); see also id.
(requiring the examining officer to take the alien’s sworn
statement and to “have the alien read (or have read to him or
her) the statement”).7
7
The relevant regulatory provision, 8 C.F.R. § 235.3(b)(2)(i), reads as
follows:
In every case in which the expedited removal
provisions will be applied and before removing an alien
from the United States pursuant to this section, the
examining immigration officer shall create a record of
the facts of the case and statements made by the alien.
This shall be accomplished by means of a sworn
statement using Form I–867AB . . . . The examining
immigration officer shall read (or have read) to the
alien all information contained on Form I–867A.
Following questioning and recording of the alien's
statement regarding identity, alienage, and
inadmissibility, the examining immigration officer shall
record the alien’s response to the questions contained
on Form I–867B, and have the alien read (or have read
to him or her) the statement, and the alien shall sign and
initial each page of the statement and each correction.
The examining immigration officer shall advise the
alien of the charges against him or her on Form I–860,
16 UNITED STATES V. RAYA-VACA
Although not every violation of a regulation rises to the
level of a due process violation, see, e.g., United States v.
Caceres, 440 U.S. 741, 751–52 (1979), certain regulations
may in fact be “mandated by the Constitution or federal law,”
id. at 749; see also Bridges v. Wixon, 326 U.S. 135, 152
(1945) (observing that particular rules and regulations for
investigations preceding deportation hearings were “designed
to . . . afford [aliens] due process of law”). That is, some
regulations protect due process and other constitutional
rights. This is the case here. Due process always requires, at
a minimum, notice and an opportunity to respond. Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)
(identifying “notice and [an] opportunity for [a] hearing
appropriate to the nature of the case” as the “essential
principle[s] of due process”). The regulations instructing the
immigration officer to advise an alien of the charge against
him and to permit the alien to read or be read the sworn
statement prepared in his name protect those fundamental due
process rights: notice of the charge the alien faces and the
alien’s opportunity to respond to that charge.8 Accordingly,
because Raya-Vaca was protected by the Due Process Clause
when he faced removal, we conclude that any failure to
inform Raya-Vaca of the charge against him and to provide
him the opportunity to review the sworn statement constituted
a violation of Raya-Vaca’s due process rights. See Yamataya
v. Fisher, 189 U.S. 86, 94, 101 (1903) (concluding that alien
Notice and Order of Expedited Removal, and the alien
shall be given an opportunity to respond to those
charges in the sworn statement.
8
Indeed, in expedited removal proceedings the form on which the
charge against the alien is recorded is entitled “Notice and Order of
Expedited Removal.”
UNITED STATES V. RAYA-VACA 17
who had entered the country, allegedly illegally, several days
prior to apprehension had to receive “all opportunity to be
heard upon the questions involving [her] right to be and
remain in the United States” to comport with due process); cf.
United States v. Brignoni-Ponce, 422 U.S. 873, 878, 882
(1975) (declining to recognize an exception to the Fourth
Amendment requirement of articulable reasonable suspicion
for stops near the border, even though such an exception
would facilitate immigration enforcement).
We further conclude that Raya-Vaca’s due process rights
to notice and an opportunity to respond were indeed violated
during his expedited removal proceedings. Raya-Vaca
asserted in a signed declaration that no immigration officer
explained to him either the nature of the removal proceedings
or that he could be ordered removed from the United States.
Raya-Vaca further asserted that the immigration officer
neither read to him nor permitted him to review the
information in the sworn statement. While Raya-Vaca
initialed the Record of Sworn Statement and signed the Jurat,
he did not, according to his declaration, understand what he
was signing. Further, Raya-Vaca acknowledged on the Jurat
that he had “read (or . . . had read to [him]) this statement,
consisting of 1 pages (including this page).” However, the
Record of Sworn Statement and Jurat together totaled four
pages, and the Jurat—the sole page Raya-Vaca acknowledged
having read—including only four questions he was asked and
answered, none of which spoke to his admissibility. Beyond
suggesting that the number of pages listed on the Jurat was
perhaps a typographical error, the Government does not argue
that the immigration officer did indeed comply with the
regulation at issue by advising Raya-Vaca of the charge
against him and reading to him, or allowing him to read, the
sworn statement. Cf. United States v. Ramos, 623 F.3d 672,
18 UNITED STATES V. RAYA-VACA
677–78 (9th Cir. 2010) (immigration officer who conducted
stipulated removal proceedings testified about the processes
she followed). Taking into consideration Raya-Vaca’s
declaration, the error on the Jurat, and the Government’s
failure to contest Raya-Vaca’s allegations, we hold that the
immigration officer failed to advise Raya-Vaca of the charge
against him and to permit him to review the sworn statement,
in contravention of Raya-Vaca’s due process rights.
In so holding, we reject the Government’s argument that
in order to show the due process violation itself—the first
prong of a showing of fundamental unfairness—Raya-Vaca
must establish that he was prejudiced by the failure to comply
with the regulation. As noted earlier, there are, for present
purposes, two types of regulations: (1) those that protect
fundamental due process rights, and (2) and those that do not.
Cf. United States v. Caceres, 440 U.S. 741, 749–53 (1979).
The second type of regulation only implicates due process
concerns when the failure to comply with the regulation
causes prejudice. See id. at 752–53; United States v.
Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979); see
also Montes-Lopez v. Holder, 694 F.3d 1085, 1093 (9th Cir.
2012) (explaining that the prejudice requirement in Calderon-
Medina applies to the “violation of a relatively minor
procedural rule,” not “serious” regulatory violations). A
violation of the first type of regulation, however, implicates
due process concerns even without a prejudice inquiry. See
United States v. Reyes-Bonilla, 671 F.3d 1036, 1045–46 (9th
Cir. 2012) (holding, without considering prejudice apart from
the plausibility of relief, that violation of regulation providing
for right to counsel constituted denial of due process); see
also United States v. Vidal-Mendoza, 705 F.3d 1012,
1015–16 (9th Cir. 2013) (holding, without prejudice inquiry,
UNITED STATES V. RAYA-VACA 19
that immigration judge’s failure to inform alien of eligibility
for relief, as required by regulation, violated due process).
Because the regulatory violation here constituted a denial
of Raya-Vaca’s right to notice and an opportunity to respond,
no showing of prejudice is necessary to establish a due
process violation. We further reject the Government’s
argument that it should have been obvious to Raya-Vaca that
he was being scrutinized for his presence in the United States
without valid documentation. Even if express notice of the
charge of inadmissibility were not necessary, we do not see
how he could have known the specific charge against him
without being told of it, and Raya-Vaca averred he was
unaware that he was facing a formal removal order based on
his lack of documentation.
Accordingly, we conclude that Raya-Vaca has established
a due process violation and thus satisfied the first requirement
for showing that his 2011 removal order was fundamentally
unfair. We now turn to the final remaining issue: prejudice.9
III. Prejudice
To succeed in demonstrating that the 2011 expedited
removal order was fundamentally unfair, Raya-Vaca must
also establish that he suffered prejudice as a result of the
entry of the order. See United States v. Jimenez-Marmolejo,
104 F.3d 1083, 1085 (9th Cir. 1996); 8 U.S.C. § 1326(d)(3).
9
Because we decide that the expedited removal proceedings violated
Raya-Vaca’s due process right to notice and an opportunity to respond, we
do not address Raya-Vaca’s argument that he was constitutionally entitled
to other protections—namely, the right to be advised of potential relief
and/or the right to consult counsel.
20 UNITED STATES V. RAYA-VACA
To do so, Raya-Vaca must show that he had “plausible
grounds for relief” from the removal order.10 Jimenez-
Marmolejo, 104 F.3d at 1086.
Even though Raya-Vaca did not formally apply for
admission to the United States, he is considered to have been
an applicant for admission and as such was eligible for
“withdrawal of application for admission.”11 See 8 U.S.C.
§ 1225(a)(4). As mentioned earlier, an individual granted
leave to withdraw his application for admission may exit the
United States voluntarily and without a removal order. See
8 C.F.R. § 1235.4. Raya-Vaca contends that he had plausible
grounds for relief from removal in the form of withdrawal of
his application for admission.
A. Analytical Framework for Plausibility of Relief
To assess whether a defendant has shown that he would
plausibly have been granted a discretionary form of relief
from removal, we follow a two-step process. See United
States v. Rojas-Pedroza, 716 F.3d 1253, 1263 (9th Cir. 2013).
“First, we identify the factors relevant to the [agency’s]
exercise of discretion for the relief being sought.” Id.
Second, “we determine whether, in light of the factors
relevant to the form of relief being sought, and based on the
unique circumstances of the [defendant’s] own case,” it was
10
We conclude that Raya-Vaca has satisfied the “plausibility” standard
for relief and therefore do not address his argument that he need only
show eligibility for relief, a lower threshold, to demonstrate prejudice.
11
Although certain classes of aliens, for example stowaways, are
ineligible for withdrawal of application for admission, see 8 U.S.C.
§ 1225(a)(2), there is no dispute as to Raya-Vaca’s eligibility for that form
of relief.
UNITED STATES V. RAYA-VACA 21
plausible that the agency official considering the defendant’s
case would have granted relief from removal. Id. (internal
quotation marks omitted).
This court’s leading case discussing the plausibility of
relief in the form of withdrawal of application for admission
is United States v. Barajas-Alvarado, 655 F.3d 1077 (9th Cir.
2011). In Barajas-Alvarado, we looked for guidance to the
Inspector’s Field Manual, an internal agency document that
counsels immigration officers as to when to grant withdrawal
of application for admission. See id. at 1090. As noted in
Barajas-Alvarado, the Inspector’s Field Manual, while not
entitled to the force of law, provides helpful insight as to
when relief is plausible—and as to whether relief was
plausible for Raya-Vaca in 2011. See id. at 1090 n.16.
The Inspector’s Field Manual provides for a highly
individualized determination and instructs officers to
“consider all facts and circumstances related to the case to
determine whether permitting withdrawal would be in the
best interest of justice.” INS Inspector’s Field Manual
§ 17.2(a) (2007), available at Westlaw FIM–INSFMAN 17.2,
2007 WL 7710869; see also Matter of Vargas-Molina, 13 I.
& N. Dec. 651, 652–53 (BIA 1971). The Manual also
enumerates six factors relevant to the question of relief:
“(1) the seriousness of the immigration violation; (2) previous
findings of inadmissibility against the alien; (3) intent on the
part of the alien to violate the law; (4) ability to easily
overcome the ground of inadmissibility; (5) age or poor
health of the alien; and (6) other humanitarian or public
interest considerations.” Barajas-Alvarado, 655 F.3d at 1090
(citing INS Inspector’s Field Manual § 17.2(a) (2001)). This
list of considerations is non-exhaustive. See INS Inspector’s
Field Manual § 17.2(a) (2007) (specifying that relevant
22 UNITED STATES V. RAYA-VACA
factors “are not limited to” the enumerated considerations);
see also Barajas-Alvarado, 655 F.3d at 1091 (evaluating the
weight due to unenumerated factors, taking into account the
Manual’s failure to identify the factors specifically). Finally,
the Manual identifies germane considerations, noting in
particular that withdrawal should “ordinarily” not be
permitted “in situations where there is obvious, deliberate
fraud on the part of the applicant.” Id. (citing as an example
of obvious fraud the use of counterfeit documents).
In Barajas-Alvarado, we concluded that the defendant
had not demonstrated that he would plausibly have been
granted relief in the form of withdrawal at the time of his
expedited removal proceedings. Id. at 1089. Critically,
Barajas-Alvarado had “conceded that he had deliberately
presented false documents to inspection officers,” thereby
committing “obvious, deliberate fraud.” Id. at 1090. In
addition, he had multiple prior findings of inadmissibility,
and his false documents evinced his intent to violate the law.
Barajas-Alvarado could not “easily overcome such grounds
of inadmissibility,” and none of the other circumstances we
took into account made relief plausible given these concerns.
Id. at 1090–91.
Conducting the corresponding, fact-specific analysis here,
we remain cognizant of the threshold Raya-Vaca must satisfy:
he must prove only the plausibility of relief. Raya-Vaca
cannot succeed by merely showing a “theoretical[]”
possibility of relief, see United States v. Reyes-Bonilla,
671 F.3d 1036, 1050 (9th Cir. 2012), but he need not prove
that relief was probable, cf. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007) (emphasizing in the notice-pleading
context that the requirement that a pleading proffer “plausible
grounds” for a claim “does not impose a probability
UNITED STATES V. RAYA-VACA 23
requirement”). Certainly, he need not show “that he
definitely would have received immigration relief.” Barajas-
Alvarado, 655 F.3d at 1089. Instead, Raya-Vaca need only
establish “some evidentiary basis on which relief could have
been granted.” Reyes-Bonilla, 671 F.3d at 1049–50.
B. Plausibility of Relief Given Raya-Vaca’s Unique
Circumstances
Bearing in mind the guidance provided by the Inspector’s
Field Manual and the definition of plausibility, we turn to
Raya-Vaca’s case.
First and foremost, Raya-Vaca committed no fraud, let
alone obvious or deliberate fraud, when entering the United
States. Therefore, a crucial consideration that, according to
the Inspector’s Field Manual, “ordinarily” militates against
withdrawal—and a consideration of singular importance in
Barajas-Alvarado, 655 F.3d at 1090—is absent here.
Several of the factors listed by the Manual cut against
Raya-Vaca’s claim that relief was plausible. Given his
history of illegal reentries—six, according to the
Government—Raya-Vaca’s immigration violation was
relatively serious.12 Further, although the 2009 stipulated
removal order may present due process concerns, see United
States v. Ramos, 623 F.3d 672 (9th Cir. 2010), Raya-Vaca
does not contest on appeal that the order constitutes a prior
finding of inadmissibility. Raya-Vaca also intended to
12
It is unclear whether the immigration officer was aware of all six of
the prior illegal entries asserted by the Government. Raya-Vaca’s Record
of Deportable/Inadmissible Alien from July 2011 only makes reference to
three prior entries.
24 UNITED STATES V. RAYA-VACA
violate the law, as evidenced by his prior unlawful entries and
the fact that he entered the United States by “walking through
the mountains.” However, these considerations are not
dispositive: the Government does not dispute that recidivist
immigration violators are permitted to withdraw their
applications for admission, and the record includes an
example of the granting of withdrawal to a recidivist
immigration violator.
In addition, neither Raya-Vaca’s apparent good health nor
his age supports his assertion that relief was plausible. The
same is true for his ability to easily overcome his ground of
inadmissibility: Raya-Vaca had no petitions for status
pending in 2011, and was not officially married to a United
States citizen, so it is not evident that he could have “easily”
overcome his inadmissibility for lack of valid
documentation.13 However, that both his long-term partner
and his brother were citizens suggests that Raya-Vaca may
have had a relatively straightforward path to legal status, a
relevant consideration given the Manual’s instruction to
“consider all facts and circumstances related to the case.”
INS Inspector’s Field Manual § 17.2(a); see also 8 C.F.R.
§ 204.2(g).
Under the final factor identified by the Manual, Raya-
Vaca presents significant humanitarian considerations
13
The Government suggests that Raya-Vaca could not overcome his
ground of inadmissibility because he was also inadmissible for reentering
the United States without inspection after having been removed in 2009.
See 8 U.S.C. § 1182(a)(9)(C)(i)(II). However, the Inspector’s Manual
focuses on the alien’s “[a]bility to easily overcome the ground of
inadmissibility”—the ground of inadmissibility with which the alien was
charged. INS Inspector’s Field Manual § 17.2(a) (emphasis added). We
thus consider other asserted grounds of inadmissibility less relevant.
UNITED STATES V. RAYA-VACA 25
counseling in favor of relief. Raya-Vaca’s partner Trisha and
their children, in addition to his mother, siblings, and much
of his extended family, currently live in the United States.
There is a “compelling humanitarian interest in keeping
families united,” so the humanitarian and public interest
factors weigh significantly in Raya-Vaca’s favor. United
States v. Haro-Munoz, 552 F. App’x 689, 690 (9th Cir. 2014);
see also Landon v. Plasencia, 459 U.S. 21, 34 (1982)
(observing that an alien’s “right to rejoin [his] immediate
family . . . ranks high among the interests of the individual”);
Cerrillo-Perez v. INS, 809 F.2d 1419, 1423 (9th Cir. 1987)
(noting that “the Constitution protects the sanctity of the
family precisely because it is deeply rooted in the Nation’s
history and tradition” (internal quotation marks omitted));
8 U.S.C. § 1182(d)(11) (INA “family unity” provision for the
waiver of inadmissibility recognizing that “assur[ing] family
unity” is in the public interest).
Certain other considerations counsel in Raya-Vaca’s
favor. First, his misdemeanor criminal history is fairly
minimal and does not appear to have much bearing on the
plausibility of relief. Second, Raya-Vaca offers a record from
another case in which withdrawal of application for
admission was granted. While that record of withdrawal does
not explain why relief was granted and thus does not help
Raya-Vaca carry his burden, see Barajas-Alvarado, 655 F.3d
at 1091 n.17, it does make clear that even an individual with
a conviction for false statement to a federal officer, no
pending petitions for legal status, and a prior exclusion order
can be permitted to withdraw his application for
admission—and thus relief under such circumstances was
plausible.
26 UNITED STATES V. RAYA-VACA
Third, Raya-Vaca presents statistics from DHS
demonstrating that a significant proportion of aliens
apprehended were permitted to withdraw their applications
for admission. In fiscal year 2004, approximately 70 percent
of the individuals subject to expedited removal
proceedings were allowed to withdraw their applications.14
See Dep’t of Homeland Sec., Annual Report: Immigration
Enforcement Actions 2004, at 6 (2005), available at
http://www.dhs.gov/xlibrary/assets/statistics/publications/
AnnualReportEnforcement2004.pdf. The percentage dropped
thereafter, but even in fiscal year 2008 (after which DHS
stopped publishing the data) fully 44 percent of aliens subject
to expedited removal proceedings were afforded this relief.
See Dep’t of Homeland Sec., Annual Report: Immigration
Enforcement Actions 2008, at 1, 4 (2009), available at
http://www.dhs.gov/xlibrary/assets/statistics/publications/
enforcement_ar_08.pdf. According to our precedent,
statistics alone cannot establish the plausibility of relief. See
Barajas-Alvarado, 655 F.3d at 1091 (observing that “a
general statistic that ‘discretionary relief applications are
granted fifty percent of the time’ was insufficient to show
plausibility of relief”);15 United States v. Corrales-Beltran,
192 F.3d 1311, 1318 (9th Cir. 1999) (rejecting defendant’s
effort to show prejudice by relying solely on statistics on the
granting of relief). However, the Supreme Court has
considered statistics when analyzing immigration claims. See
14
The Government challenges the probative value, but not the accuracy,
of the DHS statistics cited by Raya-Vaca.
15
In Barajas-Alvarado, we further noted that the value of the statistics
Barajas-Alvarado proffered was diminished because the record did not
support his claim that “arriving aliens who have used fraudulent
documents are generally granted withdrawal.” 655 F.3d at 1091. Raya-
Vaca does not make any such unsupported claim.
UNITED STATES V. RAYA-VACA 27
Demore v. Kim, 538 U.S. 510, 518–31 (2003) (considering
statistics on flight risk posed by non-detained aliens when
assessing challenge to immigration statute). And the DHS
statistics suggest that, at least in 2008, a very significant
proportion of aliens in expedited removal proceedings
obtained relief. Although Raya-Vaca’s expedited removal
proceedings took place in 2011, the data provide relevant
context for the frequency with which withdrawal was
permitted and, when considered in conjunction with other
individualized evidence supporting the plausibility of relief,
cuts in Raya-Vaca’s favor.
Given these considerations, we conclude that Raya-Vaca
has shown that in 2011 he had “some evidentiary basis on
which relief could have been granted,” United States v.
Reyes-Bonilla, 671 F.3d 1036, 1050 (9th Cir. 2012), and thus
that he had a plausible basis for relief.
The Government contends that Raya-Vaca was an alien
smuggler and that, because DHS was “ramping up” its
response to his illegal reentries, Raya-Vaca would not have
been permitted to leave in 2011 without a formal removal
order. However, that argument is belied by the fact that
Raya-Vaca appears to have been permitted to leave the
United States voluntarily (without facing formal removal
orders) in November 2009 and September 2010, even though
he had already been flagged as a potential smuggler by mid-
2009 and had stipulated to a formal removal in September
2009.16 Raya-Vaca was also permitted to voluntarily return
to Mexico in June 2009, even though he had been identified
as a potential smuggler during that unlawful entry.
16
Further, Raya-Vaca vehemently contests the allegations of smuggling.
28 UNITED STATES V. RAYA-VACA
The Government further cites a number of cases in which
we have concluded that relief in the form of withdrawal was
implausible to suggest the difficulty of establishing plausible
grounds for relief. But a significant majority of those cases
involved deliberate fraud that renders relief implausible.
Thus, they offer little insight into the case at hand, which
involved no such fraud. See Barajas-Alvarado, 655 F.3d at
1090 (noting that defendant could not “easily overcome such
grounds of inadmissibility” as deliberate fraud and two prior
removal orders); see also, e.g., United States v. Luna-
Magdaleno, 533 F. App’x 792, 793 (9th Cir. 2013); United
States v. Meraz-Olivera, 472 F. App’x 610, 612 (9th Cir.
2012).
Finally, contrary to the government’s argument, the
prejudice Raya-Vaca suffered resulted from the due process
violation. As noted, it is uncontroverted that no immigration
officer explained the nature of the removal proceedings to
Raya-Vaca or that he could be ordered removed from the
United States. His sworn statement further asserts that had he
known he could withdraw his application, he would have
asked to do so in order to preserve his ability to reenter the
United States legally by avoiding the bar resulting from a
removal order.
Although the government cites Raya-Vaca’s prior
departures as evidence that he must have known that his
failure to hold a valid entry document could yield adverse
action, in fact they demonstrate precisely the opposite.
Because Raya-Vaca’s prior departures include five voluntary
departures, they support the inference that, absent notification
of the nature of the proceedings and the charges against him,
he would have assumed that his removal likewise would not
bar him from reentry. Consequently, although not going to
UNITED STATES V. RAYA-VACA 29
the plausibility of ultimate relief, Raya-Vaca would have
inquired as to the availability of discretionary relief similar to
that which he had previously received on numerous
occasions, the immigration officer would have answered his
question truthfully, and he then would have applied for relief.
See INS Inspector’s Field Manual, § 2.4, available at
Westlaw FIM-INSFMAN 2.4 (requiring immigration officers
to be honest and fair in their dealings during the admissions
process)
We therefore hold that Raya-Vaca has shown that he had
some evidentiary basis for relief from his 2011 removal order
and therefore that he has successfully challenged that order
under 8 U.S.C. § 1326(d).
Conclusion
In sum, we conclude that Raya-Vaca had entered the
United States at the time of his 2011 expedited removal
proceedings and was thus entitled to due process in the form
of notice of the charge he faced and an opportunity to
respond. Because the immigration officer who conducted the
proceedings failed to observe Raya-Vaca’s due process rights,
and because Raya-Vaca could plausibly have been granted
relief in the form of withdrawal of his application for
admission, we hold that his 2011 removal order is invalid and
cannot serve as the predicate for his conviction under
8 U.S.C. § 1326. We therefore reverse the denial of Raya-
Vaca’s motion to dismiss the information and his conviction.
REVERSED AND REMANDED.