United States v. Valdez-Novoa, No. 12-50336 (9th Cir. 2015)
Annotate this CaseThe Ninth Circuit amended an opinion and dissent filed on July 28, 2014 in which a panel of the Ninth Circuit affirmed a conviction for attempting to enter the United States without consent after having been previously removed. Here the panel amended the opinion and dissent, denied a petition for panel rehearing, and denied a petition for rehearing en banc. Defendant collaterally attacked the underlying removal order, arguing that the immigration judge (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. The panel affirmed the conviction, holding (1) even if the IJ should have informed Defendant of his apparent eligibility for voluntary departure, Defendant was not prejudiced by the error, and therefore, the removal order was not fundamentally unfair under 8 U.S.C. 1326(d)(3); and (2) the conviction based on Defendant’s videotaped confession did not run afoul of the corpus delicti doctrine.
Court Description: Criminal Law. The panel amended an opinion and dissent filed on July 28, 2014, in a case in which 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 panel also denied a petition for panel rehearing, and denied on behalf of the court a petition for rehearing en banc. 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 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 even if the IJ should have informed the defendant of his apparent eligibility for voluntary departure, the defendant was not prejudiced by the alleged 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). UNITED STATES V. VALDEZ-NOVOA 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 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.
This opinion or order relates to an opinion or order originally issued on July 28, 2014.
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