United States v. Valdez-Novoa, No. 12-50336 (9th Cir. 2014)
Annotate this CaseDefendant, a native and citizen of Mexico, appealed his conviction for attempting to enter the United States without consent after having been previously removed. In regards to defendant's collateral attack of the underlying removal order, the court held that defendant was not denied due process because the IJ's determination that he had been convicted of an aggravated felony was not contrary to the court's precedent at the time the removal order was issued and was the product of a reasonable reading of the statute; because defendant 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; even if the IJ should have informed defendant of his apparent eligibility for voluntary departure, the failure to do so did not render the removal proceedings "fundamentally unfair" under 8 U.S.C. 1326(d)(3) because he was no prejudiced by the alleged error; and, therefore, the underlying removal order was a valid predicate to a conviction for attempted illegal reentry. The court also held that ample record evidence corroborated defendant's confession to the gravamen of the offense and establishes the trustworthiness of his statement to the DHS officer. Accordingly, the conviction based on defendant's videotaped confession does not run afoul of the corpus delicti doctrine. The court affirmed the judgment of the district court.
Court Description: 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 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.
The court issued a subsequent related opinion or order on February 27, 2015.
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