USA v. Luis Barajas-Alvarado

Filing

FILED OPINION (PAMELA ANN RYMER, RICHARD C. TALLMAN and SANDRA S. IKUTA) AFFIRMED. Judge: SSI Authoring. FILED AND ENTERED JUDGMENT. [7868411]

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 1 of 24

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LUIS MARIO BARAJAS-ALVARADO,
Defendant-Appellant.





No. 10-50134
D.C. No.
3:09-cr-01236-H-1
OPINION

Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
July 15, 2011—Pasadena, California
Filed August 24, 2011
Before: Pamela Ann Rymer, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta

11465

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 2 of 24

11469

COUNSEL
James M. Chavez, Esquire, Federal Defenders of San Diego,
San Diego, California for defendant-appellant Luis Mario
Barajas-Alvarado.
Mark R. Rehe, Assistant U.S. Attorney, San Diego, California
for appellee United States of America.

Case: 10-50134

11470

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 3 of 24

UNITED STATES v. BARAJAS-ALVARADO

OPINION
IKUTA, Circuit Judge:
To convict an alien criminal defendant of illegal reentry
under 8 U.S.C. § 1326,1 the government must prove that the
alien left the United States under order of exclusion, deportation, or removal, and then illegally reentered. In United States
v. Mendoza-Lopez, the Supreme Court held that a criminal
defendant has a Fifth Amendment right to “some meaningful
review” of a prior administrative proceeding that resulted in
the exclusion, deportation, or removal order used as a predicate to a § 1326 offense. 481 U.S. 828, 837-38 (1987). Here,
we conclude that Barajas-Alvarado was entitled to judicial
review of the predicate expedited removal orders underlying
his § 1326 prosecution but failed to show any prejudice resulting from the alleged procedural flaws in the proceedings that
resulted in those orders. We therefore affirm the district
court’s denial of Barajas-Alvarado’s motion to dismiss his
indictment and the subsequent conviction and sentence.
I
Luis Mario Barajas-Alvarado was removed to Mexico from
the United States through the San Ysidro, California, Port of
Entry on December 11, 2002, and July 24, 2003, via expedited removal orders.2 He returned to the United States, and
was apprehended and removed to Mexico on July 27, 28, and
29, 2003, August 3, 2003 and December 9, 2004. BarajasAlvarado was last returned to Mexico through the San Ysidro,
California, Port of Entry on February 11, 2005.
1

Unless otherwise noted, all statutory citations are to Title 8 of
United States Code.
2
Expedited removal proceedings provide a streamlined process
which U.S. officers can remove aliens who attempt to gain entry to
United States but are not admissible. See § 1225(b)(1); see also infra
11473-75. We refer to such aliens herein as “non-admitted aliens.”

the
by
the
pp.

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 4 of 24

11471

On January 18, 2009, Barajas-Alvarado applied for admission into the United States at the Calexico, California, West
Port of Entry, using a fraudulent permanent resident alien
card. When the officer determined that Barajas-Alvarado was
not the rightful owner of the identity card, Barajas-Alvarado
attempted to flee to Mexico but was apprehended and
escorted to the secondary inspection office.
After his arrest, Barajas-Alvarado admitted that he had purchased the immigration document from a street vendor in
Mexico. He also admitted that he had been previously
deported from the United States, he had a prior criminal history,3
and “he attempted to enter the [United States] to seek employment and reunite with his family in Los Angeles.”
On April 1, 2009, a grand jury for the Southern District of
California returned a one-count indictment charging BarajasAlvarado with attempted entry after deportation, in violation
of § 1326(a) and (b). On September 16, 2009, BarajasAlvarado filed a motion to dismiss the indictment for lack of
a valid predicate removal order. At a subsequent hearing
before the district court, he argued that a prior stipulated
removal order was invalid and the two previous expedited
removal orders could not be used as predicates to a § 1326
prosecution. According to Barajas-Alvarado, Mendoza-Lopez
precluded use of the expedited removal orders because the
proceedings that resulted in those orders were flawed, he had
a constitutional due process right to challenge the validity of
those proceedings, and § 1225(b)(1)(D) precluded him from
making such a collateral attack.
3
According to the record, Barajas-Alvarado had two prior convictions.
On April 23, 1990, he was convicted in Los Angeles County Superior
Court for transportation/sale of marijuana, for which he received 60 days
in jail and 36 months of probation. On March 9, 2004, Barajas-Alvarado
was convicted of being a deported alien found in the United States, in violation of § 1326(a) and (b), for which he received 21 months in prison followed by 24 months of supervised release.

Case: 10-50134

11472

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 5 of 24

UNITED STATES v. BARAJAS-ALVARADO

The district court agreed that the prior stipulated removal
order was invalid, but held that the December 11, 2002 and
July 24, 2003 expedited removal orders could serve as a basis
for the § 1326 prosecution because Barajas-Alvarado could
not show “any prejudice whatsoever” resulting from the
alleged procedural violations during his expedited removal
proceedings. Therefore, the district court denied BarajasAlvarado’s motion to dismiss to the extent it relied on the
expedited removal orders.
On December 18, 2009, as part of a written plea agreement,
Barajas-Alvarado entered a conditional guilty plea to the
indictment and reserved his right to appeal the use of the
expedited removal orders as predicates to his § 1326 charge.
On appeal, Barajas-Alvarado claims that: (1) the Immigration and Naturalization Act (INA) precludes any meaningful
judicial review of an expedited removal order, including
review of a collateral challenge to such an order in a § 1326
action; (2) under Mendoza-Lopez, 481 U.S. at 837-38, some
meaningful review of the order is constitutionally required
before the order can be used as a predicate to a criminal proceeding; and therefore (3) because the statute precludes
review, expedited removal orders cannot be used as predicates
in § 1326 prosecutions. We consider Barajas-Alvarado’s
premises and conclusions, each of which require a detailed
look at a thorny and complex area of immigration law.
II
[1] We first consider the nature of expedited removal
under § 1225(b) and whether the limited administrative and
judicial review available for these orders is sufficient to satisfy constitutional concerns when the orders are used as predicates to a § 1326 prosecution for illegal reentry.

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 6 of 24

11473

A
The expedited removal statute, § 1225(b), provides that
when an alien seeks admission to the United States after arriving at a port of entry and does not have entry documents, misrepresents the alien’s identity or citizenship, or presents
fraudulent identity or immigration documents, “the officer
shall order the alien removed from the United States without
further hearing or review unless the alien indicates either an
intention to apply for asylum . . . or a fear of persecution.”
§ 1225(b)(1)(A)(i).4 The agency has promulgated regulations
governing the procedures for expedited removal. See 8 C.F.R.
§ 1235.3(b)(2)(i). First, “the examining immigration officer
shall create a record of the facts of the case and statements
made by the alien . . . by means of a sworn statement using
Form I-867AB, Record of Sworn Statement in Proceedings
under Section 235(b)(1).” Id. The alien must sign and initial
each page. Id. Second, the immigration officer “shall advise
the alien of the charges against him or her on Form I-860,
Notice and Order of Expedited Removal, and the alien shall
be given an opportunity to respond to those charges in the
sworn statement.” Id. The immigration officer then serves the
alien with Form I-860, and the alien must sign the back of the
form to acknowledge receipt. Id. “Interpretative assistance
shall be used if necessary to communicate with the alien.” Id.
4

Section 1225(b)(1) states in relevant part:
If an immigration officer determines that an alien (other than an
alien described in subparagraph (F)[for present purposes, an
immigrant from Cuba]) who is arriving in the United States or is
described in clause (iii)[certain aliens who have not been present
unlawfully in the United States for less than two years], is inadmissible under section 1182(a)(6)(C)[providing generally that
aliens who seek to procure admission into the United States by
fraud are inadmissible] or 1182(a)(7) [providing generally that
aliens lacking a valid entry document are inadmissible] of this
title, the officer shall order the alien removed from the United
States without further hearing or review unless the alien indicates
either an intention to apply for asylum under section 1158 of this
title or a fear of persecution.

§ 1225(b)(1)(A)(i).

Case: 10-50134

11474

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 7 of 24

UNITED STATES v. BARAJAS-ALVARADO

[2] In order to streamline the removal process, the INA
limits administrative and judicial review of expedited removal
proceedings. As § 1225(b) states, in the ordinary case the
immigration officer “shall order the alien removed from the
United States without further hearing or review.”
§ 1252(b)(1)(A)(i) (emphasis added). Congress authorized
administrative review for expedited removal orders only in
two narrow circumstances: (1) if the alien claims under oath
that he or she is a lawful permanent resident, was previously
admitted as a refugee, or was previously granted asylum, see
§ 1225(b)(1)(C); or (2) if the alien claims a fear of persecution if returned to the alien’s home country, and an immigration officer deems this fear to be not credible, see
§ 1225(b)(1)(B)(iii)(III).
[3] Congress expressly deprived courts of jurisdiction to
hear a direct appeal from an expedited removal order. See
§ 1252(a)(2)(A) (limiting review of expedited removal orders
to habeas review under § 1252(e)). Although courts have
jurisdiction to hear habeas petitions from aliens subject to an
expedited removal order, this jurisdiction is limited to considering whether the petitioner is legally in the country, e.g.,
because the alien is a lawful permanent resident, admitted as
a refugee, or has been granted asylum, and whether the petitioner was expeditiously removed. See § 1252(e)(2). However, a court’s habeas jurisdiction does not extend to review
of the claim that an alien was wrongfully deprived of the
administrative review permitted under the statute and applicable regulations. See id.; see also § 1225(b)(1)(B)(iii)(III) (providing for an IJ’s review of an immigration officer’s adverse
credibility determination against an alien who claims a fear of
persecution); Garcia de Rincon v. Dep’t of Homeland Sec.,
539 F.3d 1133, 1139 (9th Cir. 2008).
[4] Congress has also prohibited courts from reviewing a
collateral challenge to expedited removal orders used as predicates in § 1326 proceedings. See § 1225(b)(1)(D). Section
1225(b)(1)(D) provides that in any criminal prosecution for

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 8 of 24

11475

illegal entry against an alien, “the court shall not have jurisdiction to hear any claim attacking the validity” of an expedited order of removal. See id.5
[5] In sum, we agree with the first prong of BarajasAlvarado’s argument: the INA precludes meaningful judicial
review of the validity of the proceedings that result in an
expedited removal order.
B
[6] Given this conclusion, we must turn to the second
prong of Barajas-Alvarado’s argument and consider whether
under Mendoza-Lopez, some meaningful review of an expedited removal order is constitutionally required in order to use
it as a predicate to a criminal prosecution.
In Mendoza-Lopez, two aliens arrested in Nebraska and
subjected to a group deportation hearing were ordered
deported to Mexico. 481 U.S. at 830. Less than two months
later, both aliens were again found in Nebraska and were
charged with illegal reentry in violation of § 1326.6 Id. Both
men moved to dismiss their indictments on the ground that the
IJ had “inadequately informed them of their right to counsel
at the hearing, and accepted their unknowing waivers of the
5

Other sections of the INA provide for review of removal orders, but
they do not apply to expedited proceedings. For example, though
§ 1252(a)(2)(D) gives courts jurisdiction to review “constitutional claims
or questions of law raised upon a petition for review,” this section does
not abrogate or supersede § 1225(b)(1)(D) because it gives jurisdiction
solely over “petition[s] for review,” and expedited removal orders cannot
be appealed by means of a petition for review. § 1252(a)(2)(A); see Garcia de Rincon, 539 F.3d at 1138-39.
6
The version of § 1326 in effect at that time did not include subsection
(d) (allowing limited collateral challenges to removal orders), which Congress added in direct response to Mendoza-Lopez. See United States v.
Garcia-Martinez, 228 F.3d 956, 959 n.5 (9th Cir. 2000) (noting that
§ 1326(d) partially codified Mendoza-Lopez).

Case: 10-50134

11476

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 9 of 24

UNITED STATES v. BARAJAS-ALVARADO

right to apply for suspension of deportation” and to appeal. Id.
at 831-32. The district court dismissed the indictments, holding that the aliens could bring this sort of collateral challenge
in a criminal prosecution, and that the deportation hearing
violated the aliens’ due process rights because they had not
made knowing and intelligent waivers of their rights to apply
for relief or to appeal. Id. The Eighth Circuit affirmed, holding that the hearing was fundamentally unfair, and thus the
deportation orders were unlawful. Id. at 832.
[7] Reviewing the case, the Court first determined that the
then-current language of § 1326 did not allow for a collateral
challenge to a deportation order, see id. at 835, and the legislative history indicated that Congress did not intend to permit
such a challenge, id. Nevertheless, the Supreme Court held
that the fact that “Congress did not intend the validity of the
deportation order to be contestable in a § 1326 prosecution
does not end our inquiry,” because “[i]f the statute envisions
that a court may impose a criminal penalty for reentry after
any deportation, regardless of how violative of the rights of
the alien the deportation proceeding may have been, the statute does not comport with the constitutional requirement of
due process.” Id. at 837. Accordingly, the Court held that notwithstanding Congress’s apparent intent, “where a determination made in an administrative proceeding is to play a critical
role in the subsequent imposition of a criminal sanction, there
must be some meaningful review of the administrative proceeding.” Id. at 837-38; see also id. at 841 (“Persons charged
with crime are entitled to have the factual and legal determinations upon which convictions are based subjected to the
scrutiny of an impartial judicial officer.”).
[8] Having established that aliens are entitled to “some
meaningful review” of their deportation proceedings before
the resulting removal orders can be used as predicates to a
criminal prosecution, the Court held it could review the
aliens’ challenge to the proceedings resulting in the predicate
removal orders in that case. Because the government had

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 10 of 24

11477

asked the Court “to assume that [the aliens’] deportation hearing was fundamentally unfair,” the Court ruled that the government could not rely on the prior deportation orders as
reliable proof of an element of a criminal offense. Id. at
839-40. Thus, although the Court provided little direct guidance about the nature of the “some meaningful review” standard to which aliens are constitutionally entitled, MendozaLopez makes clear that the alien is entitled to judicial review
of a claim that the prior proceeding was “fundamentally
unfair” and thus cannot be used as a predicate for a criminal
case, where the prior proceeding was not previously subjected
to judicial review. Id.
[9] Although Mendoza-Lopez addressed a situation in
which the aliens had a statutory right to judicial review of a
deportation order, but were effectively deprived of that right
due to procedural errors in the deportation hearing, the principle established by Mendoza-Lopez is equally applicable in the
expedited removal order context. By its terms, the principle
that aliens must have “some meaningful review” of the proceedings resulting in their removal orders if such orders are
to “play a critical role in the subsequent imposition of a criminal sanction,” id. at 837-38, applies whether it was a procedural error or a statutory mandate that deprived the alien of
judicial review of the predicate removal order.7 Moreover,
Mendoza-Lopez protects a defendant’s right in a criminal
7
We likewise have described the right recognized by Mendoza-Lopez in
a general manner that would apply equally to aliens seeking to challenge
an expedited removal order in a subsequent § 1326 prosecution. See, e.g.,
United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010) (noting
that Mendoza-Lopez held that “as a matter of due process, a defendant
must be permitted to bring a collateral challenge to a prior deportation that
underlies a criminal charge, where the prior deportation proceeding effectively eliminated the right of the alien to obtain judicial review”); United
States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004) (noting
that a criminal defendant in a § 1326 criminal prosecution has a “Fifth
Amendment right to collaterally attack his removal order because the
removal order serves as a predicate element of his conviction”).

Case: 10-50134

11478

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 11 of 24

UNITED STATES v. BARAJAS-ALVARADO

prosecution to challenge a predicate removal order, and nothing in Mendoza-Lopez suggests that a criminal defendant
should lose such protection merely because the defendant was
a non-admitted alien at the time the predicate removal order
was issued.8 Therefore, the rationale for applying the
Mendoza-Lopez requirement is applicable to a defendant in a
criminal prosecution regardless of whether the defendant was
a non-admitted alien or an alien in the United States when the
removal order was issued.
Arguing against this conclusion, the government contends
that non-admitted aliens who received expedited removal
orders are differently situated than the aliens in MendozaLopez, who had been present in the United States when the
predicate removal orders were issued. According to the government, because non-admitted aliens are not entitled to any
procedural protections at all, any procedural errors in the issuance of expedited removal orders have no legal import, and
therefore expedited removal orders are not subject to review
in a subsequent criminal proceeding. We have indeed held
that non-admitted aliens are not entitled to any procedure visà-vis their admission or exclusion. See Barrera-Echavarria v.
Rison, 44 F.3d 1441, 1448-49 (9th Cir. 1995) (noting that
“[a]n excludable alien . . . has no procedural due process
rights regarding his admission or exclusion”), superseded by
8
The government does not argue that a criminal defendant who is a nonadmitted alien is entitled to less than full due process protections in a
§ 1326 prosecution, and therefore we do not address this issue. We have
previously assumed that even non-admitted aliens are entitled to the normal range of protections in a criminal trial. See United States v. GracidasUlibarry, 231 F.3d 1188, 1191 n.3, 1196-97 (9th Cir. 2000) (en banc)
(holding that a district court committed constitutional error in failing to
instruct the jury on an element of the crime in the trial of a non-admitted
alien for a § 1326 violation); see also Kwai Fun Wong v. United States,
373 F.3d 952, 971-73 (9th Cir. 2004) (noting that “[s]everal courts have
held . . . that non-admitted aliens in the criminal justice system may not
be punished prior to an adjudication of guilt in conformance with due process of law, a Fifth and Sixth Amendment safeguard available to citizens
and aliens alike”).

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 12 of 24

11479

statute, 8 U.S.C. § 1231(a)(6); accord Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1097-98 (9th Cir. 2004). Nevertheless,
the Supreme Court has ruled that when Congress enacts a procedure, aliens are entitled to it. See United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (“Whatever
the procedure authorized by Congress is, it is due process as
far as an alien denied entry is concerned.”); Pazcoguin v. Radcliffe, 292 F.3d 1209, 1218 (9th Cir. 2002) (noting that an
alien in exclusion proceedings has no procedural due process
rights regarding his admission or exclusion except for the procedures authorized by Congress and holding that “[t]he statute
provides the only process [the alien] is due, and he received
that process”); see also United States v. Calderon-Medina,
591 F.2d 529, 531 (9th Cir. 1979) (stating that it is “not necessary to invoke constitutional grounds” to find a deportation
unlawful, because when courts invalidate “adjudicatory
actions by federal agencies which violated their own regulations promulgated to give a party a procedural safeguard, . . .
the basis for such reversals is not . . . the Due Process Clause,
but rather a rule of administrative law.” (alterations in original) (internal quotation marks omitted) (quoting Mendez v.
INS, 563 F.2d 956 (9th Cir. 1977))). Accordingly, though
Congress could have created an expedited removal scheme
based entirely on the Attorney General’s discretion, see
Shaughnessy, 338 U.S. at 543-44; see also Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950) (distinguishing the rights
of aliens within the United States to those outside the territorial jurisdiction of the United States), here it created procedures for identifying and removing aliens expeditiously, see,
e.g., § 1225(b); 8 C.F.R. §§ 1235.3(b), 1235.4, thereby laying
the groundwork for limited procedural rights for arriving
aliens. See Jean v. Nelson, 472 U.S. 846, 857 (1985) (holding
that non-admitted Haitian refugees could challenge the failure
of immigration officials to comply with INS regulations, but
declining to consider whether the Fifth Amendment was
implicated).
[10] Given the language and reasoning in Mendoza-Lopez,
we conclude that its holding applies equally to alien criminal

Case: 10-50134

11480

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 13 of 24

UNITED STATES v. BARAJAS-ALVARADO

defendants seeking to challenge expedited removal orders
used as predicates in § 1326 prosecutions. Therefore, we also
generally agree with the second prong of Barajas-Alvarado’s
argument: specifically, an alien previously removed pursuant
to an expedited removal order must receive some judicial
review of the proceeding resulting in that order if the alien
challenges the expedited removal order as “fundamentally
unfair,” and the order is to “play a critical role in the subsequent imposition of a criminal sanction.” 481 U.S. at 837-39.
Under our case law, “a predicate removal order satisfies the
condition of being ‘fundamentally unfair’ for purposes of
§ 1326(d)(3) when the deportation proceeding violated the
alien’s due process rights and the alien suffered prejudice as
a result.” Arias-Ordonez, 597 F.3d at 976.
C
In light of our interpretation of Mendoza-Lopez, we now
turn to the final issue raised by Barajas-Alvarado’s argument:
whether the government is precluded from relying on expedited removal orders as predicates in § 1326 actions, as
Barajas-Alvarado contends, or alternatively whether
§ 1225(b)(1)(D) is unconstitutional to the extent it precludes
a collateral challenge to an expedited removal order in a criminal prosecution.
Before we address this issue, we must first consider the
government’s arguments that we need not resolve this question at all. First, according to the government, MendozaLopez’s requirement that aliens have an opportunity for meaningful review can be satisfied in the habeas proceeding authorized by § 1252(e)(2). We disagree, because the limited
habeas review available under § 1252(e)(2) does not permit
aliens to challenge the validity of the expedited removal
order. Rather, as explained above, it allows an alien to claim
only that the removal order was issued in error because the
alien is legally entitled to be present in the United States, or
that a removal order was never issued. See, e.g., Khan v.

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 14 of 24

11481

Holder, 608 F.3d 325, 329-30 (7th Cir. 2010) (finding no
jurisdiction to review the validity of an expedited removal
order under § 1252(e)(2)); Brumme v. INS, 275 F.3d 443,
446-48 (5th Cir. 2001) (holding that the court lacked jurisdiction to determine whether an expeditiously removed alien
was, in fact, admissible or entitled to relief from removal).
The habeas right accorded by § 1252(e)(2) does not allow the
alien to claim that the proceeding resulting in the expedited
removal order was fundamentally unfair due to some procedural flaw and resulting prejudice.
Second, the government contends that we can avoid conflict with Mendoza-Lopez by interpreting § 1225(b)(1)(D) to
permit limited review of expedited removal orders. But this
approach is contrary to the plain language of § 1225(b)(1)(D),
which expressly strips courts of jurisdiction “to hear any
claim attacking the validity of an [expedited removal order]”
in any action “brought against an alien under . . . section
1326.” § 1225(b)(1)(D). Although we must avoid making a
constitutional ruling if we can do so by any fair reading of a
statute, INS v. St. Cyr, 533 U.S. 289, 299-300 (2001) (quoting
Crowell v. Benson, 285 U.S. 22, 62 (1932)), here there is no
fair reading of the statutory language that allows collateral
review of expedited removal orders, cf. United States v.
Locke, 471 U.S. 84, 96 (1985) (“We cannot press statutory
construction to the point of disingenuous evasion even to
avoid a constitutional question.” (quoting George Moore Ice
Cream Co. v. Rose, 289 U.S. 373, 379 (1933)) (internal quotation marks omitted)); Molski v. M.J. Cable, Inc., 481 F.3d
724, 732 (9th Cir. 2007) (“Where the statutory language is
clear and consistent with the statutory scheme at issue, the
plain language of the statute is conclusive and the judicial
inquiry is at an end.”). Where a statute tells us that we cannot
hear “any claim,” even limited review of a claim that the alien
was prejudiced by flaws in the expedited removal order violates this command, and we must decline to do so.9
9

The government’s reliance on the Fifth Circuit’s decision in United
States v. Lopez-Vasquez, 227 F.3d 476, 486 (5th Cir. 2000), to support its

Case: 10-50134

11482

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 15 of 24

UNITED STATES v. BARAJAS-ALVARADO

[11] Because we cannot comply with Mendoza-Lopez’s
direction in the ways suggested by the government, we turn
to Barajas-Alvarado’s argument that we must hold that expedited removal orders can never be used as predicates in
§ 1326 prosecutions.10 We reject this approach, because we
cannot ignore Congress’s clear intent to impose substantial
penalties on aliens who return to the United States without
permission following removal, regardless of whether the
removal was accomplished through an expedited procedure or
through more formal proceedings. The sanctions imposed
under § 1326 apply to aliens who, among other things, have
been denied admission, excluded, or otherwise “departed the
United States while an order of exclusion, deportation, or
removal is outstanding,” § 1326(a)(1), and makes no exception for those arriving aliens who were denied admission or
excluded and ordered removed via expedited proceedings.
proposed approach is misplaced. In Lopez-Vasquez, the court held that
§ 1225(b)(1)(D) did not “preclude the district court or [the appeals] court
from determining that the requisites of a Mendoza-Lopez claim as asserted
by [the petitioner] are not met,” and then concluded that the alien could
not succeed in his collateral challenge to his expedited removal order
because “he did not suffer any prejudice” as a result of the alleged due
process violations in the prior proceeding. Id. at 485-86. In light of the
plain language of § 1225(b)(1)(D), Lopez-Vasquez is best read as implicitly holding that § 1225(b)(1)(D) is unconstitutional to the extent the statute forbids even this limited review. If Lopez-Vasquez is interpreted as
holding that § 1225(b)(1)(D) itself allows such judicial review, we disagree.
10
Though Barajas-Alvarado purports to raise general challenges to the
expedited removal system in an effort to persuade us that they should not
be permitted as predicates to § 1326 offenses, § 1252(e)(3) limits jurisdiction over general challenges to expedited removal proceedings to “action[s] instituted in the United States District Court for the District of
Columbia.” § 1252(e)(3) (limiting the D.C. District’s determinations to
whether § 1225 or any regulation issued to implement it is constitutional,
or whether regulations, written policy directives, written policy guidelines,
or written procedures issued by or under the authority of the Attorney
General, are in violation of law). Therefore, we cannot address BarajasAlvarado’s general attacks on the expedited removal process.

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 16 of 24

11483

[12] Moreover, § 1225(b)(1)(D) expressly refers to the use
of expedited removal orders in § 1326 prosecutions.
§ 1225(b)(1)(D) (precluding judicial review of claims attacking the validity of expedited removal orders “[i]n any action
brought against an alien under . . . section 1326 of this title”).
This statutory language would be superfluous if we excluded
expedited removal orders from § 1326 prosecutions. In this
respect, we are bound by the “fundamental canon of statutory
construction that a statute should not be construed so as to
render any of its provisions mere surplusage.” United States
v. Wenner, 351 F.3d 969, 975 (9th Cir. 2003); see also Ratzlaf
v. United States, 510 U.S. 135, 140-41 (1994); Bowsher v.
Merck & Co., 460 U.S. 824, 833 (1983) (restating “the settled
principle of statutory construction that we must give effect, if
possible, to every word of the statute”).
[13] Because we cannot flout the intent of Congress to
make § 1326 applicable to aliens who were removed from the
United States via an expedited order of removal, and because
we cannot ignore the language in § 1225(b)(1)(D) clearly contemplating that such orders would be used as predicates in
§ 1326 prosecutions, we likewise cannot avoid reaching the
constitutional issue raised by Mendoza-Lopez. Accordingly,
we must conclude that § 1225(b)(1)(D) is unconstitutional to
the extent it prohibits “some meaningful review” in a § 1326
criminal prosecution of a claim that the proceeding that
resulted in the expedited removal order was fundamentally
unfair in that “the deportation proceeding violated the alien’s
due process rights and the alien suffered prejudice as a
result.” Arias-Ordonez, 597 F.3d at 976.11 In taking this
approach to resolve the conflict between constitutional due
process requirements and § 1225(b)(1)(D), we follow exactly
11

This approach is similar to the Fifth Circuit’s inquiry in LopezVasquez, in which the court held that the alien could not succeed in his
collateral challenge to his expedited removal order because “he did not
suffer any prejudice” as a result of the alleged due process violations in
the prior proceeding. 227 F.3d at 485-86.

Case: 10-50134

11484

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 17 of 24

UNITED STATES v. BARAJAS-ALVARADO

the approach taken by the Supreme Court in Mendoza-Lopez,
where it required review of the proceedings that resulted in a
removal order even though the Supreme Court concluded that
Congress did not intend courts “to sanction challenges to
deportation orders in proceedings under § 1326.” 481 U.S. at
837.
III
Guided by this analysis, we turn now to Barajas-Alvarado’s
claims. Based on the record, Barajas-Alvarado had no opportunity for judicial review of the proceedings that resulted in
the expedited removal orders that the government used as
predicates for the § 1326 prosecution. Because BarajasAlvarado never claimed that he was a lawful permanent resident, a refugee, or an asylum recipient, he was not entitled to
administrative review of his expedited removal orders under
§ 1225(b). Nor did Barajas-Alvarado file a habeas petition or
attempt to contest the prior expedited removal orders on any
of the grounds enumerated in § 1252(e)(2). Finally,
§ 1225(b)(1)(D) does not permit Barajas-Alvarado to make a
collateral challenge to his expedited removal order in the
§ 1326 criminal proceeding.
[14] Because per Mendoza-Lopez, Barajas-Alvarado is
entitled to “some meaningful review” of the proceedings
resulting in the expedited removal orders if they are to be
used as an element in a § 1326 prosecution and he claims they
are fundamentally unfair, we now consider his claim that
these proceedings were fundamentally unfair, meaning that
the procedural errors he identifies deprived him of due process, and he suffered prejudice as a result.
[15] Barajas-Alvarado alleges three procedural errors: that
his right to counsel was violated; that the immigration officer
failed to translate the proceedings into Spanish, as required by
8 C.F.R. § 1235.3(b)(2)(i); and that the immigration officer

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 18 of 24

11485

did not obtain his signature on the back of the Form I-860 and
did not advise Barajas-Alvarado of the charges against him.
[16] Barajas-Alvarado’s claim that he was denied his right
to counsel, is meritless on its face. Barajas-Alvarado himself
identifies no legal basis for his claim that non-admitted aliens
who have not entered the United States have a right to representation, and we are aware of no applicable statute or regulation indicating that such aliens have any such right. The cases
cited by Barajas-Alvarado involve aliens in the more formal
removal proceedings, where the regulations provide a right of
counsel, as compared to expedited removal proceedings,
where they do not. Cf. 8 C.F.R. § 287.3 (stating that “[e]xcept
in the case of an alien subject to . . . expedited removal
. . . , an alien arrested without warrant and placed in formal
proceedings . . . will be advised of the reasons for his or her
arrest and the right to be represented at no expense to the
Government” (emphasis added)). Because non-admitted
aliens are entitled only to whatever process Congress provides, see Shaughnessy, 338 U.S. at 544, Barajas-Alvarado’s
lack of representation in the removal proceeding did not constitute a procedural error at all, let alone a due process violation.
We cannot so easily dispose of Barajas-Alvarado’s claim
that the proceedings were not translated into Spanish, however.12
Though the applicable procedures require that the immigra12
Barajas-Alvarado also claims that he did not sign the back of the Form
I-860, and therefore was not informed of the charges against him as
required by 8 C.F.R. § 1235.3(b)(2)(i). Because the record is silent as to
whether Barajas-Alvarado signed the back of the Form I-860 or was otherwise informed of the charges against him, Barajas-Alvarado did not carry
his burden of proof on this claim and cannot establish the existence of a
due process violation or prejudice. See United States v. Leon-Leon, 35
F.3d 1428, 1431 (9th Cir. 1994). In any event, even if we assume that
Barajas-Alvarado suffered a due process violation because he did not sign
the back of the Form I-860, he has identified no prejudice resulting from
this violation.

Case: 10-50134

11486

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 19 of 24

UNITED STATES v. BARAJAS-ALVARADO

tion official provide the alien with “[i]nterpretative assistance,” § 1235.3(b)(2)(i), and we have held that “[d]ue
process requires that an applicant be given competent translation services,” He v. Ashcroft, 328 F.3d 593, 598 (9th Cir.
2003); see also Perez-Lastor v. INS, 208 F.3d 773, 778 (9th
Cir. 2000), the record is ambiguous as to whether BarajasAlvarado received the required assistance. Some portions of
the relevant documentation indicate that the proceeding was
translated, while other portions indicate it was not.13
[17] Even assuming that the equivocal evidence in the
record establishes that Barajas-Alvarado suffered a due process violation because his removal proceedings were not
translated, we must still consider whether such error resulted
in prejudice. See United States v. Ramos, 623 F.3d 672,
683-84 (9th Cir. 2010). An alien seeking to prove prejudice
need not establish that he definitely would have received
immigration relief, but only that he had “plausible grounds”
for receiving such relief. United States v. Arce-Hernandez,
163 F.3d 559, 563 (9th Cir. 1998). Where the relevant form
of relief is discretionary, the alien must “make a ‘plausible’
showing that the facts presented would cause the Attorney
General to exercise discretion in his favor.” Id.; United States
v. Corrales-Beltran, 192 F.3d 1311, 1316 (9th Cir. 1999). We
note, however, that establishing “plausibility” requires more
than establishing a mere “possibility.” In Arce-Hernandez, for
example, this court held that the alien did not show prejudice
because the facts on which he would have relied to show “extreme hardship,” as required for § 212(h) relief, were insuffi13

Specifically, the first pages of the transcripts of Barajas-Alvarado’s
2002 and 2003 sworn statements during his expedited proceedings indicate that the interviews were performed in Spanish. Barajas-Alvarado
signed his name on the third page of both statements, indicating that he
had read, or had read to him, the sworn statements. However, the 2003
statement has a checked box indicating that the statement was not read
back to Barajas-Alvarado in Spanish, while the 2002 statement has
checked boxes indicating that the statement was and was not read back to
Barajas-Alvarado in Spanish.

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 20 of 24

11487

cient to meet that standard. 163 F.3d at 564. Similarly, in
Corrales-Beltran, we held that an alien had failed to make the
required “plausible showing that the Attorney General would
have exercised discretion in his favor” based on “the unique
circumstances of his own case,” because all the alien offered
was a general statistic that “discretionary relief applications
are granted fifty percent of the time.” 192 F.3d at 1318. Based
on this fact alone, we said, “it would be sheer speculation to
conclude” that the alien’s “appeal would have been successful.” Id. In other words, to show “plausible grounds” for
relief, an alien must show that, in light of the factors relevant
to the form of relief being sought, and based on the “unique
circumstances of [the alien’s] own case,” it was plausible (not
merely conceivable) that the IJ would have exercised his discretion in the alien’s favor. Id.
[18] Barajas-Alvarado argues that but for the procedural
errors, he would have asked to withdraw his application for
admission, and it is plausible that the immigration officer
would have granted him such relief. We disagree. As
explained below, even assuming that Barajas-Alvarado could
establish that he would have requested withdrawal relief but
for the alleged translation error, he fails to show plausibility
that he would have received this relief.
Although an arriving alien may ask to withdraw an application for admission, the grant of such relief is discretionary.
See 8 C.F.R. § 1235.4. Prior to IIRIRA, both IJs and immigration officers had the authority to permit an alien to withdraw
an application for admission under certain circumstances, an
exercise of discretion recognized in the case law, see In re
Gutierrez, 19 I. & N. Dec. 562 (B.I.A. 1988), but not codified.
In Gutierrez, the BIA instructed IJs on how this discretion
should be exercised, and indicated (among other things) that
an alien’s attempted fraudulent entry would ordinarily make
the alien ineligible for withdrawal relief. See id. at 565
(“[E]ven if we were to disregard the applicant’s attempted
fraudulent entry, we can discern no facts or circumstances rel-

Case: 10-50134

11488

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 21 of 24

UNITED STATES v. BARAJAS-ALVARADO

evant to the issue of his admissibility which suggest that justice demands that he be allowed to withdraw his application
for admission.”). When Congress enacted IIRIRA, it codified
this form of discretionary relief in § 1225(a)(4).14 The agency
subsequently developed regulations authorizing immigration
officers to permit arriving aliens to withdraw their applications for admission “in lieu of removal proceedings” or expedited removal. See 8 C.F.R. § 1235.4.15
[19] While the statute and regulation set forth scant guidance for the immigration officer to determine whether to grant
withdrawal relief, the agency has prepared an internal document, an Inspector’s Field Manual, to guide the immigration
inspector’s exercise of discretion.16 The Field Manual sets
forth six factors that the immigration officer should consider
in evaluating an alien’s request for permission to withdraw,
namely: (1) the seriousness of the immigration violation; (2)
previous findings of inadmissibility against the alien; (3)
intent on the part of the alien to violate the law; (4) ability to
easily overcome the ground of inadmissibility; (5) age or poor
health of the alien; and (6) other humanitarian or public interest considerations. Like Gutierrez, it concludes that “[a]n
expedited removal order should ordinarily be issued, rather
14
Section 1225(a)(4) provides that “[a]n alien applying for admission
may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately
from the United States.”
15
Section 1235.4 provides that the Attorney General may exercise his or
her discretion to permit “any alien applicant for admission to withdraw his
or her application for admission in lieu of removal proceedings . . . or
expedited removal.” The regulation notes that “[p]ermission to withdraw
an application for admission should not normally be granted unless the
alien intends and is able to depart the United States immediately.”
16
Although the Field Manual does not have the force of law, see Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000), and thus is not entitled
to Chevron-style deference, it guides the immigration officers’ discretion
and therefore gives us insight regarding whether it is plausible that an
immigration officer would have granted Barajas-Alvarado’s request for
withdrawal.

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 22 of 24

11489

than permitting withdrawal, in situations where there is obvious, deliberate fraud on the part of the applicant.” INS Inspector’s Field Manual § 17.2(a) (2001), available at Westlaw
FIM-INSFMAN 17.2.
The government argues that in determining whether
Barajas-Alvarado established that a grant of his requested
withdrawal is plausible, we should be guided by Matter of
Gutierrez, while Barajas-Alvarado argues that Gutierrez is not
relevant to his case, because it provided guidance to IJs rather
than to immigration officers, and because it predates the
applicable statute and regulations. Instead, he contends that
we should be guided by the Field Manual. We need not
resolve this issue, because Barajas-Alvarado’s argument that
he has a plausible claim of relief fails under the standard set
forth in the Field Manual.
[20] When we consider the factors listed in the Field Manual, it is clear they all weigh against Barajas-Alvarado’s
request for withdrawal. Barajas-Alvarado conceded that he
had deliberately presented false documents to inspection officers in an effort to gain admission to the United States. He
does not dispute that he has been subject to two expedited
removal orders. Thus his immigration violation was serious,
and there were multiple findings of inadmissibility against
him. Barajas-Alvarado cannot easily overcome such grounds
of inadmissibility. His deliberate use of false documents
establishes his intent to violate the law. Moreover, he was neither a youth nor elderly (rather he was 35 at the time of his
most recent expedited removal) and does not allege that he
was in poor health; there were no humanitarian or public
interest considerations weighing in his favor. Given the
weight of these factors against any request for withdrawal,
and given the Field Manual’s direction that the immigration
officer should ordinarily issue an expedited removal order
rather than permitting withdrawal in situations where there is
obvious, deliberate fraud, it is implausible that Barajas-

Case: 10-50134

11490

08/24/2011

ID: 7868411

DktEntry: 43-1

Page: 23 of 24

UNITED STATES v. BARAJAS-ALVARADO

Alvarado would have been allowed to withdraw had he
requested such relief.
Despite these factors weighing against him, BarajasAlvarado argues that it is still plausible he would have been
permitted to withdraw his application for admission for three
reasons: (1) as a matter of statistics, it is plausible that he
would have received permission to withdraw; (2) his prior
crimes were not serious, and (3) his “ties to the United States
were tremendous.” None of these factors supports his plausibility claim. His argument based on statistics is foreclosed by
Corrales-Beltran, which (as explained above) held that a general statistic that “discretionary relief applications are granted
fifty percent of the time” was insufficient to show plausibility
of relief. 192 F.3d at 1318. Although Barajas-Alvarado argues
that arriving aliens who have used fraudulent documents are
generally granted withdrawal, the record does not support this
claim.17 His second and third factors (seriousness of the
crimes for which he was removed, and his ties to the United
States) are not listed as considerations in the Inspector’s Field
Manual and therefore carry little weight, particularly in light
of the Field Manual’s emphasis on the disqualifying effect of
“obvious, deliberate fraud on the part of the applicant.” INS
Inspector’s Field Manual § 17.2(a).
[21] Because Barajas-Alvarado cannot make a plausible
showing that the facts presented would have caused the immigration officer to exercise discretion in his favor, Arce17

Barajas-Alvarado cites Valadez-Munoz v. Holder, 623 F.3d 1304,
1306-07 (9th Cir. 2010), and Munyua v. United States, 2005 WL 43960,
at *1-2 (N.D. Cal. Jan. 5, 2005), two cases in which an alien who presented false documents and was granted withdrawal, as evidence that it is
plausible that he would also have been granted relief. Because these cases
involve aliens in very different factual circumstances, and the courts in
those cases neither addressed nor explained why the alien was granted
withdrawal relief, they do not help Barajas-Alvarado carry his burden of
showing it was plausible he would have been granted relief in his unique
circumstances.

Case: 10-50134

08/24/2011

ID: 7868411

DktEntry: 43-1

UNITED STATES v. BARAJAS-ALVARADO

Page: 24 of 24

11491

Hernandez, 163 F.3d at 563; Corrales-Beltran, 192 F.3d at
1318, he has failed to establish prejudice. Because there was
no prejudice, Barajas-Alvarado has failed to show that his
predicate removal orders were invalid; accordingly, the district court did not err in ruling that they could be used as predicates for the § 1326 prosecution.
IV
In sum, we conclude there must be “some meaningful
review” of the proceeding that resulted in an expedited
removal order if it is used as a predicate for criminal prosecution of an alien under § 1326. Our review, however, is limited
to a determination whether the removal proceeding that
resulted in the expedited removal order was fundamentally
unfair because it violated the alien’s due process rights and
resulted in prejudice. Applying this standard to the facts of
this case, and even assuming that but for the alleged procedural violations in his hearing Barajas-Alvarado would have
requested the right to withdraw his application for admission,
Barajas-Alvarado failed to establish that it was plausible such
relief would be granted, and therefore failed to establish any
prejudice resulting from the alleged procedural violations. As
such, his expedited removal orders could be used as predicates for the § 1326 prosecution. We therefore affirm the district court’s denial of his motion to dismiss the indictment and
the subsequent judgment and sentence.
AFFIRMED.