The opinion and dissent filed on July 28, 2014, and appearing at 760 F.3d 1013 (9th Cir.2014), are hereby amended. The superseding amended opinion and amended dissent will be filed concurrently with this order.
With these amended opinions, the panel has voted to deny the petition for panel rehearing. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. The petition for rehearing and the petition for rehearing en banc, filed September 10, 2014, is
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 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 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
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.
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 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.
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.
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 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.
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." United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir.2001).
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
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 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 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
The government expressly conceded before the district court 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." But the government now raises this issue on appeal, arguing that Valdez-Novoa was statutorily ineligible for voluntary departure because the IJ correctly determined that he had been convicted of an aggravated felony. "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). Nevertheless, we decline to address this issue here because we conclude that even if the IJ's failure to advise Valdez-Novoa of his apparent eligibility for voluntary departure relief was a violation of due process, he suffered no 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 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)). Assuming arguendo that Valdez-Novoa's removal proceedings did not comport with due process, we hold that Valdez-Novoa was not prejudiced by the error.
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
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, 757 F.3d 885, 898 (9th Cir.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; Barajas-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, 224 F.3d at 1079; United States v. Esparza-Ponce, 193 F.3d 1133, 1136 (9th Cir.1999); United States v. Arce-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 [to] 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, 757 F.3d at 898. We do not read any of our cases to suggest that requiring the defendant to make "a prima facie showing" is
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, 757 F.3d at 898 ("[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
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.
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, 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 U.S. as a child, and by 1999 his parents had
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.
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 to an alien
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 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-Jimenez, 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
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 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
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, 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).
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).
In United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir.2000) (en banc), we held that
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, 75 S.Ct. 158, 99 L.Ed. 101 (1954); Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954); and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (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.
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
We apply a two-pronged test to determine whether sufficient evidence corroborates Valdez-Novoa's confession:
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 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, 75 S.Ct. 194 ("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.").
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, 75 S.Ct. 194, 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 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.
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, 75 S.Ct. 194 (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 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.
We affirm the district court's judgment. First, we hold that even assuming arguendo that Valdez-Novoa's removal proceedings did not comport with due process, he 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. 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
Judge McKEOWN, Circuit Judge, dissenting:
I respectfully dissent. As the majority notes, Valdez-Novoa's case turns on
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. Fortunately, the majority has chosen not to countenance that argument.
However, the majority concludes that Valdez-Novoa was not prejudiced by the due process violation. I 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.2004) (quoting United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000)).
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." ___ U.S. ___, 132 S.Ct. 2073, 2080, 182 L.Ed.2d 998 (2012) (internal citation 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Considering the Supreme Court's formulation coupled with our precedent, I
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
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 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.
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 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-Jimenez, 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
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.
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.
