804 F.3d 714 (5th Cir. 2015), 14-50053, United States v. Cordova-Soto

Docket Nº:14-50053
Citation:804 F.3d 714
Opinion Judge:FORTUNATO P. BENAVIDES, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. GABRIELA CORDOVA-SOTO, Defendant - Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX; Sonja Marie Ralston, Ross Brandon Goldman, Attorney, U.S. Department of Justice, Criminal Division, Washington, DC; Zimra Payvand Ah...
Judge Panel:Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
Case Date:October 23, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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804 F.3d 714 (5th Cir. 2015)

UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

GABRIELA CORDOVA-SOTO, Defendant - Appellant

No. 14-50053

United States Court of Appeals, Fifth Circuit

October 23, 2015

Page 715

Appeal from the United States District Court for the Western District of Texas.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX; Sonja Marie Ralston, Ross Brandon Goldman, Attorney, U.S. Department of Justice, Criminal Division, Washington, DC; Zimra Payvand Ahdout, U.S. Department of Justice, Office of the Solicitor General, Washington, DC.

For GABRIELA CORDOVA-SOTO, Defendant - Appellant: Meghan Elizabeth Greenfield, Louis K. Fisher, Esq., Brian J. Murray, Esq., Attorney, Jones Day, Washington, DC; Claudia Beatrice Valenzuela Rivas, National Immigrant Justice Center, Chicago, IL.

For NATIONAL IMMIGRATION LAW CENTER, Amicus Curiae: Karen Cassandra Tumlin, National Immigration Law Center, Los Angeles, CA.

Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.

OPINION

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FORTUNATO P. BENAVIDES, Circuit Judge:

This is a direct criminal appeal in which the appellant is challenging her conviction for illegal reentry into the United States as a previously removed alien. See 8 U.S.C. § 1326. Appellant Gabriela Cordova-Soto (" Cordova" ) appeals the district court's denial of her motion to dismiss the indictment, arguing that the order of removal, which formed the basis for the instant offense, was invalid. More specifically, Cordova contends that the Immigration Judge (" IJ" ) failed to expressly find that her waiver of rights and stipulation of removability was voluntary, knowing, and intelligent as required by 8 C.F.R. § 1003.25(b). She also contends that her waiver was involuntary because it was induced by incorrect advice given to her by an immigration officer. Finding no reversible error, we AFFIRM.

I. PROCEDURAL HISTORY

Cordova is a Mexican national who was brought into the United States as an infant. In 1991, she attained lawful permanent residency at age 13. In May 2002, she was convicted of misdemeanor theft. The next year she was convicted of passing a worthless check. In 2005, she pleaded guilty to felony possession of methamphetamine in Kansas state court. Later that year, agents of the Immigration and Customs Enforcement Agency (" ICE" ) served Cordova with a Notice to Appear before an IJ. The notice charged her as removable as (1) an aggravated felon based on the methamphetamine conviction, (2) an alien convicted of two crimes involving moral turpitude (theft and worthless check convictions), and (3) an alien convicted of a controlled substance offense (same methamphetamine conviction). See 8 U.S.C. § 1227(a)(2)(A)(ii), (a)(2)(A)(iii), and (a)(2)(B)(i).

At the processing center in Chicago, an ICE agent presented Cordova with a boiler plate form that was entitled Stipulated Request for Issuance of Final Order of Removal, Waiver of Appearance and Hearing (" Stipulated Form of Removal" ). The agent told Cordova that she had no basis to challenge her removal and that any attempts to challenge it would only prolong her detention. The agent informed her that she could call a legal service organization and gave her a list of phone numbers. Cordova called one legal service organization and briefly spoke to a person who also told her that she did not have any basis for seeking cancellation of removal. Cordova, who speaks and reads English, signed the Stipulated Form of Removal and dated it November 1, 2005. The form provided that she had been " fully advised of [her] rights" and " hereby voluntarily, knowingly and intelligently enter[s] into the following stipulations." It also provided

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that she had been advised of her right to be represented by counsel and right to a removal hearing. It further provided that she waived any right to make any application for relief from removal under the Immigration and Nationality Act. On the final page of the form, albeit dated six days later on November 7, 2005, ICE Agent James Gutierrez certified that he had read and explained the document to Cordova.

On November 8, 2005, after finding Cordova removable, the IJ accepted the Stipulated Form of Removal and ordered her removed to Mexico. Approximately three weeks later, on November 27, 2005, Cordova reentered the United States. Several years later, on March 18, 2010, local law enforcement officers discovered Cordova in Kansas. On September 15, 2010, she was taken into the custody of the Department of Homeland Security. The 2005 order of removal was reinstated, and Cordova was removed to Mexico on September 26, 2010. She appealed to the Board of Immigration Appeals (" BIA" ), and her appeal was dismissed. Cordova appealed to the Tenth Circuit, requesting review of the initial removal order and the reinstated removal order, and her petition was denied. Cordova-Soto v. Holder, 659 F.3d 1029, 1030 (10th Cir. 2011). The Tenth Circuit held that it did not have jurisdiction to review the 2005 order because she had not filed her petition for review within 30 days of her 2005 removal as directed by 8 U.S.C. § 1252(b)(1). Id. at 1032. The court found that it had jurisdiction to review the 2010 removal order but denied it on the merits. Id. at 1035. The court held that " [b]ecause she could not have entered the United States legally at [the time of her reentry], her reentry was illegal and she was therefore subject to reinstatement of her previous removal order under 8 U.S.C. § 1231(a)(5)." Id. 1

On January 24, 2012, Cordova filed a motion seeking to reopen her 2005 order of removal in the Kansas City Immigration Court, which the IJ denied on June 6, 2012. The BIA upheld the IJ's decision on September 17, 2012. Cordova petitioned for review of the denial of the motion to reopen the 2005 removal order in the Seventh Circuit. Cordova-Soto v. Holder, 732 F.3d 789, 793 (7th Cir. 2013), cert. denied, 135 S.Ct. 85, 190 L.Ed.2d 37 (2014). Like the Tenth Circuit, the Seventh Circuit held that it did not have jurisdiction to review the 2005 removal order because the appeal was not filed within the 30-day time limit contained in 8 U.S.C. § 1252(b)(1). Id. 2 The court explained that although it did have jurisdiction to consider the merits of the denial of Cordova's motion to reopen, it held that 8 U.S.C. § 1231(a)(5) " prohibits collateral review after the review of the reinstatement is complete." Id. at 795. The court thus denied the petition. Id. at 796.

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Meanwhile, on September 6, 2012, Border Patrol agents arrested Cordova for being an alien illegally present in the United States. On October 3, a grand jury in Del Rio, Texas indicted Cordova for the offense of illegal reentry after removal in violation of 8 U.S.C. § 1326. Cordova filed a motion to dismiss the indictment, challenging the validity of the 2005 removal order. She argued, among other things, that the removal order was fundamentally unfair because the IJ did not conduct a hearing and expressly determine that her waiver of rights in the Stipulated Form of Removal was voluntary, knowing, and intelligent as required by 8 C.F.R. § 1003.25(b). The district court noted that (1) Cordova is fluent in English, (2) the stipulation she signed is written in plain language that clearly stated the legal effect of signing the waiver, (3) she does not in fact claim that she unknowingly signed it--only that the IJ failed to make such a determination, and (4) the record contains a certification by the ICE agent that he explained to her the rights she was waiving by signing the document. The district court ruled that " [a]ll of these facts taken together support a finding that the Defendant intelligently, knowingly, and voluntarily entered into the Stipulation of removal." The court further found that although the IJ did not conduct a hearing or colloquy to determine whether her waiver was voluntary and knowing, " the acceptance of the Stipulation supports an implicit finding that the IJ determined the Stipulation was given as such." Accordingly, the district court denied the motion to dismiss the indictment.

Cordova pleaded guilty. In the plea agreement, Cordova reserved the right to appeal all issues relating to the district court's ruling on the motion to dismiss the indictment. Cordova now appeals.

II. ANALYSIS

Cordova contends that because her prior order of removal was invalid, the district court erred in denying her motion to dismiss the instant indictment charging her with illegal reentry. We review de novo a district court's denial of a motion to dismiss the indictment, including any underlying constitutional claims. United States v. Villanueva-Diaz, 634 F.3d 844, 848 (5th Cir. 2011). This court accepts " all factual findings made by the district court in connection with that ruling unless clearly erroneous." Id. A factual finding is clearly erroneous only if, based on the entirety of the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been made. United States v. Valdez, 453 F.3d 252, 262 (5th Cir. 2006).

The Supreme Court has held that an alien who is prosecuted for illegal reentry may collaterally attack the underlying removal order. United States v. Mendoza-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). More specifically, the Supreme Court held that due process requires collateral review of deportation orders that form the basis of a prosecution for illegal reentry, explaining that " where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense." Id. at 838. After Mendoza-Lopez, this court held...

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