United States v. Valdivia-Flores

• Decision Date: 07 December 2017
• Docket Number: No. 15-50384,15-50384
• Citation: 876 F.3d 1201
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Alejandro VALDIVIA–FLORES, aka Francisco Cruz-Mendoza, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

876 F.3d 1201

UNITED STATES of America, Plaintiff-Appellee,

v.Jose Alejandro VALDIVIA–FLORES, aka Francisco Cruz-Mendoza, Defendant-Appellant.

No. 15-50384

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 10, 2016—Pasadena, California

Filed December 7, 2017

Ellis M. Johnston III (argued), San Diego, California, for Defendant-Appellant.

Helen H. Hong (argued), Assistant United States Attorney; Lindsey A. Forrester Archer, Special Assistant United States Attorney; Peter Ko, Chief, Appellate Section, Criminal Division; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

Before: Diarmuid F. O'Scannlain and Johnnie B. Rawlinson, Circuit Judges, and Rosemary Marquez,^* District Judge.

Special Concurrence by Judge O'Scannlain ; Dissent by Judge Rawlinson

O'SCANNLAIN, Circuit Judge:

We must decide whether a conviction for possession of a controlled substance with intent to distribute under Washington state law is an aggravated felony for purposes of federal immigration law.

I

Jose Valdivia–Flores is a Mexican citizen who entered the United States without inspection in 1995. In 1997, he was charged with and ultimately pled guilty to a violation of Washington's drug trafficking statute, Wash. Rev. Code § 69.50.401. In his Statement of Defendant on Plea of Guilty, Valdivia–Flores described the crime he was being charged with as: "possession with intent to deliver—Heroin." He also wrote out the elements of the crime: "Possess a controlled substance (heroin) with intent to distribute it in King County and know it was a narcotic drug." Finally, stating what made him guilty of Wash. Rev. Code § 69.50.401 in his own words, Valdivia–Flores wrote: "On June 20, 1997 in King County WA I did unlawfully possess with intent to deliver Heroin a controlled substance and did know it was a controlled substance." Valdivia–Flores was sentenced to 21 months' imprisonment, which he served at an accelerated pace over seven months at a work ethic camp.

While he was in the camp, immigration officers prepared a Notice to Appear which charged Valdivia–Flores with being removable. In an order dated January 28, 1998, an immigration judge suspended the immigration proceedings because Valdivia–Flores was still serving his sentence at the camp and therefore could not be produced for a hearing. Nonetheless, at the conclusion of his sentence in April 1998, immigration officers physically removed Valdivia–Flores to Mexico without an order. Valdivia–Flores returned to the State of Washington that same year, again without inspection at the border.

In 2009, Valdivia–Flores was convicted of malicious mischief in the third degree in violation of Wash. Rev. Code § 9A.48.090 for smashing the windshield of his wife's vehicle after an argument. He pled guilty, and his sentence was suspended. At the time of that prosecution, the Department of Homeland Security initiated administrative removal proceedings pursuant to 8 U.S.C. § 1228(b). In March 2009, he received two copies of a form, one in English and one in Spanish, titled Notice of Rights and Request for Disposition. This notice informed Valdivia–Flores that he had "the right to a hearing before the Immigration Court to determine whether [he] may remain in the United States." Valdivia–Flores filled out and signed the Spanish version of the form, electing to request a hearing before the Immigration Court.

Also in March 2009, the Department of Homeland Security issued Valdivia–Flores a Notice of Intent to Issue a Final Administrative Removal Order ("Notice of Intent"). It stated that Valdivia–Flores's 1997 conviction under Wash. Rev. Code § 69.50.401(a) was for an aggravated felony so that he was removable without a hearing before an immigration judge. The Notice of Intent informed Valdivia–Flores of his right to petition for review of his removal in the appropriate U.S. Circuit Court of Appeals. It also provided three check-boxes of options by which Valdivia–Flores could "contest [his] deportability": (1) he could assert that he was "a citizen or national of the United States"; (2) he could assert that he was "a lawful permanent resident"; and (3) he could claim that he was "not convicted of the criminal offense described" in the Notice of Intent. Valdivia–Flores did not contest his removal or request withholding of removal and instead checked a box acknowledging that he had "the right to remain in the United States for 14 calendar days in order to apply for judicial review" and that he "waive[d] this right." He did not petition for review of the removal decision and was removed on April 4, 2009. He remained in Mexico for a few days and then unlawfully reentered the United States for a third time.

On August 13, 2013, Valdivia–Flores was arrested in Washington for being an illegal alien found in the United States, in violation of 8 U.S.C. § 1326. He pled guilty and was convicted in the Western District of Washington in September 2013. Immigration authorities once again initiated removal proceedings. Valdivia–Flores requested asylum and sought a stay of removal "for humanitarian reasons," but those requests were denied, and Valdivia–Flores was removed in September 2014.

On November 13, 2014, Valdivia–Flores attempted to return (for a fourth time) to the United States, applying for entry through the pedestrian lanes at the San Ysidiro, California port of entry. Valdivia–Flores falsely identified himself as another person and presented a false and fraudulent United States Certification of Naturalization. He was charged with one count of attempted reentry of a removed alien in violation of 8 U.S.C. § 1326 and one count of fraudulent use of an immigration document in violation of 18 U.S.C. § 1546.

Prior to trial, Valdivia–Flores brought a collateral attack against the validity of his 2009 order of removal and moved to dismiss the attempted reentry count of the indictment. The district court denied the motion to dismiss because Valdivia–Flores "did in fact admit in his plea agreement to committing a drug trafficking offense, which is an aggravated felony."

The parties then entered into a stipulation in which Valdivia–Flores agreed to facts satisfying all the elements of both counts in the indictment. Based on those stipulated facts, following a bench trial the district court found Valdivia–Flores guilty of both charges and sentenced him to 21 months' imprisonment on both counts, running concurrently.

Valdivia–Flores filed this timely appeal and seeks to challenge collaterally the classification of his underlying Washington state conviction as an aggravated felony.¹

II

Valdivia–Flores contends that because his 1997 conviction was incorrectly determined to be an aggravated felony, his 2009 removal was invalid. If the 2009 removal was invalid, that "precludes reliance on th[at] deportation" in the subsequent illegal reentry prosecution. United States v. Ramos , 623 F.3d 672, 679 (9th Cir. 2010). Valdivia–Flores's collateral attack is governed by 8 U.S.C. § 1326(d), which allows such an attack to succeed if Valdivia–Flores can demonstrate that (1) he exhausted the administrative remedies available for seeking relief from the predicate removal order; (2) the removal proceedings improperly deprived him of the opportunity for judicial review; and (3) the removal order was fundamentally unfair. 8 U.S.C. § 1326(d). The first two prongs of § 1326(d) are satisfied if his right to appeal was denied in violation of due process. United States v. Gomez , 757 F.3d 885, 893 (9th Cir. 2014).

Valdivia–Flores contends that his due process rights were indeed violated because "immigration officials failed to obtain a knowing waiver of" his right to appeal the removal order. Gomez , 757 F.3d at 893. "In order for [a] waiver to be valid ... it must be both considered and intelligent." United States v. Arrieta , 224 F.3d 1076, 1079 (9th Cir. 2000) (internal quotation marks omitted). The government contends that Valdivia–Flores did validly waive his right to appeal by signing the Notice of Intent, by failing to appeal, and by freely choosing instead to return to this country unlawfully.

Because Valdivia–Flores asserts that his waiver was not considered and intelligent, the government must show by clear and convincing evidence that the waiver was valid, Ramos , 623 F.3d at 681, and it may not simply rely on the signed document purportedly agreeing to the waiver, Gomez , 757 F.3d at 895. Because we cannot rely on the contested waiver document itself, we evaluate the surrounding circumstances to determine whether the government can overcome the presumption against waiver. See Cisneros-Rodriguez , 813 F.3d at 756.

Here, although the Notice of Intent described the window in which Valdivia–Flores could respond to the charges against him or file a petition for judicial review, it did not explicitly inform him that he could refute, through either an administrative or judicial procedure, the legal conclusion underlying his removability. In fact, the Notice of Intent's three check boxes suggested just the opposite—that removability could only be contested on factual grounds. The list of options available to "check off" did not include an option to contest the classification of the conviction as an aggravated felony, and the only check box relevant to the conviction itself only allowed Valdivia–Flores to contest that he "was not convicted of the criminal offense described."

The form's deficiencies are magnified because Valdivia–Flores "was not represented and never had the benefit of appearing before an [immigration judge], who, we presume, would have adequately conveyed both [his] appeal options and the finality associated with waiving appeal." Ramos , 623 F.3d at 681 (internal quotation marks omitted). Indeed, the Notice of Intent was issued without a hearing before an immigration judge despite Valdivia–Flores's request for a hearing. The government provides no evidence that an immigration officer ever met with...