United States v. Reyes-Bonilla

• Citation: 2012 Daily Journal D.A.R. 1575,12 Cal. Daily Op. Serv. 1458,671 F.3d 1036
• Decision Date: 06 February 2012
• Docket Number: No. 10–50361.,10–50361.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Willis Roberto REYES–BONILLA, aka Francisco Alvarado Garcia, aka Francisco Garcia Alvarado, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

12 Cal. Daily Op. Serv. 1458
2012 Daily Journal D.A.R. 1575
671 F.3d 1036

UNITED STATES of America, Plaintiff–Appellee,
v.
Willis Roberto REYES–BONILLA, aka Francisco Alvarado Garcia, aka Francisco Garcia Alvarado, Defendant–Appellant.

No. 10–50361.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 3, 2011.Filed Feb. 6, 2012.

[671 F.3d 1038]

Brendan M. Hickey, San Francisco, CA, for the defendant-appellant.

Kyle W. Hoffman, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California, Michael M. Anello, District Judge,

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Presiding. D.C. No. 3:09–cr–02918–MMA–1.Before: ALFRED T. GOODWIN and KIM McLANE WARDLAW, Circuit Judges, and BRIAN M. COGAN, District Judge.^*

OPINION GOODWIN, Senior Circuit Judge:

Following a conditional guilty plea, Willis Reyes–Bonilla (“Reyes”) appeals his conviction for being a deported alien found in the United States without permission in violation of 8 U.S.C. § 1326. Reyes contends that the district court should have granted his motion to dismiss the indictment because it was based on a 2001 removal order that was entered in violation of his due process right to counsel, prejudicing his ability to obtain immigration relief.

Almost twenty years ago, our circuit held that a defendant seeking to exclude evidence of a prior removal order in a prosecution for illegal reentry must do more than demonstrate a violation of due process rights; “[t]he defendant also bears the burden of proving prejudice.” United States v. Proa–Tovar, 975 F.2d 592, 595 (9th Cir.1992) (en banc); see also 8 U.S.C. § 1326(d)(3) (requiring an alien to show that “entry of the order was fundamentally unfair” in order to succeed on a collateral attack). In so doing, the Proa–Tovar court recognized that the defendant was effectively denied his right to direct review of the removal order, but affirmed his conviction for illegal reentry because he could identify “no plausible grounds of relief” that would have precluded his removal. 975 F.2d at 594. Accordingly, we did “not attempt to delineate the boundaries of the prejudice element” because “[w]hatever they might be, Proa–Tovar did not show that he suffered even the possibility of prejudice.” Id. at 595–96.

In this appeal, we are faced with two more variations in what has become an ongoing debate over “the boundaries of prejudice” resulting from due process violations during removal proceedings. First, we address whether prejudice should be presumed where an alien was not advised of his right to counsel and did not waive this right. We hold that such a violation does not by itself establish per se prejudice for the purpose of a collateral attack on a final removal order under § 1326(d)(3). Second, we address what constitutes a plausible claim to deferral of removal under the Convention Against Torture (“CAT”), in light of the absence of counsel at the time of removal proceedings. For the reasons that follow, we hold that Reyes has not established that he had a plausible claim to relief at the time the removal order was issued. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND A. Reyes's Removal in 2001

A citizen of Guatemala, Reyes first entered the United States without permission in 1991 at the age of twenty. In 1995, Reyes was convicted in Los Angeles County of carjacking and assault with a firearm in violation of California Penal Code §§ 215(a) and 245(a)(2) and sentenced to seven years in prison. Prior to his release, Reyes was investigated by U.S. immigration authorities.

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Finding that Reyes was not a legal permanent resident and had been convicted of an aggravated felony, immigration authorities processed his removal from the United States through expedited proceedings. Pursuant to 8 U.S.C. § 1228(b), the Attorney General has the discretion to determine the deportability of a non-permanent resident alien who has been convicted of an aggravated felony and issue a final order of removal without a hearing before an immigration judge. See 8 C.F.R. § 238.1 (outlining requirements for expedited removal proceedings under § 1228).¹

On August 16, 2001, Deportation Officer Joel Mata Jr. served Reyes with a two-page Notice of Intent to Issue a Final Administrative Removal Order (“Notice of Intent”). The first page of the Notice of Intent charged Reyes with being deportable under 8 U.S.C. § 1227(a)(2)(A)(iii), identified the allegations supporting this charge, and listed Reyes's statutory rights and responsibilities. It also stated that pursuant to § 1228(b), the government intended to issue the final order “without a hearing before an immigration judge,” although Reyes could “seek judicial review of any final administrative order by filing a petition for review.” Among his rights, the Notice of Intent states that Reyes “may be represented (at no expense to the United States government) by counsel, authorized to practice in this proceeding.”

The Notice of Intent is entirely in English. Reyes has testified, however, that he “cannot speak or read English.” At the bottom of the first page, the section of the notice attesting to service indicates that Officer Mata “explained and/or served” it to Reyes in Spanish. While there is a signature block for an interpreter, it was left blank.

On the second page of the Notice of Intent, Reyes acknowledged receiving it and indicated that he did not wish to contest the charge by signing a preprinted waiver section, which was also entirely in English. This preprinted admission/waiver section states:

I admit the allegations and charge in the Notice of Intent. I admit that I am deportable and acknowledge that I am not eligible for any form of relief from removal. I waive my right to rebut and contest the above charges and my right to file a petition for review of the Final Removal Order. I wish to be deported to Guatemala.

While Officer Mata signed this section as a witness, there is no additional indication that he explained or read the preprinted admissions and waivers to Reyes in Spanish. The waiver section also makes no mention of Reyes's waiver of his right to counsel.

Based on the uncontested allegations in the Notice of Intent and Reyes's waiver of his right to file a petition for review, a Final Administrative Removal Order was issued on August 7, 2001. Reyes was subsequently removed to Guatemala on October 10, 2001.

B. Reinstatement of the Removal Order in 2007

Reyes reentered the United States without permission in 2003. In 2006, Reyes was arrested in San Diego County and pleaded guilty to driving under the influence

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of alcohol. While on probation for this charge, Reyes was again arrested for driving under the influence and sentenced to nine days in jail. Following completion of this sentence, Reyes was detained by Immigration and Customs Enforcement (“ICE”) in November 2007.²

During an interview conducted in Spanish on November 19, 2007, Reyes told an ICE agent that he “fear[ed] persecution or torture should [he] be removed from the United States,” explaining that “[g]angs in Guatemala have threatened my life.” Nine days later, however, Reyes filed a form withdrawing his request for a reasonable fear determination. Completed with the assistance of a Spanish translator, this form states that Reyes was withdrawing his prior request because: “I never intended to apply for asylum and want to return to Guatemala as soon as possible. I am not afraid to return to Guatemala.” ³ This form further indicates that Reyes had been advised of his “right to seek protection from removal based on fear of torture or persecution,” that he was represented by counsel, and that he had discussed the matter with his counsel. Finally, the form includes an English translation of questioning about his prior statements in which Reyes says: “The officer who interviewed me asked me if I was afraid and I just said gangs were bad in Guatemala. I did not mean that I was afraid to return because of the gangs or that I would be harmed. That is not the case.” While Reyes now contends that he was not represented by counsel and did not consult with an attorney at the time he withdrew his request, he does not dispute the accuracy of the statements attributed to him.

Following Reyes's withdrawal of his request for a reasonable fear determination, the 2001 removal order was reinstated. Reyes was subsequently removed to Guatemala on December 19, 2007.

C. Proceedings Before the District Court

In less than twelve months, Reyes again returned to the United States and was again arrested for driving under the influence of alcohol. After serving a year in jail, he was released to ICE on May 27, 2009. On July 30, 2009, Reyes was indicted on one count of being an alien found in the United States following removal in violation of 8 U.S.C. § 1326(a) and (b).

Reyes moved to dismiss the indictment, arguing that the August 7, 2001 final removal order was invalid because he was never advised of his rights in a language he could understand and therefore did not validly waive them. In support, Reyes testified that at the time of his initial removal in 2001: “I was told by the immigration officer that I was going to be deported and that I should just sign so I could go.... I was never advised [by] the immigration officer of my right to consult with an attorney, my right to appeal, or that I might be eligible for immigration relief.”

Reyes argued that he was prejudiced by this due process violation because with the help of counsel he could have sought some

[671 F.3d 1042]

form of relief, including deferral of his removal based on his fear of gang violence in Guatemala. He testified that “I never had the opportunity to tell the immigration officer about the dangers of returning to Guatemala.” Reyes contends that “[p]eople who return from the United States are frequently targeted by gangs because the gangs believe...