USA v. Willis Reyes-Bonilla

Filing

FILED OPINION (ALFRED T. GOODWIN, KIM MCLANE WARDLAW and BRIAN M. COGAN) AFFIRMED. Judge: ATG Authoring, FILED AND ENTERED JUDGMENT. [8057200]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIS ROBERTO REYES-BONILLA,
AKA Francisco Alvarado Garcia,
AKA Francisco Garcia Alvarado,
Defendant-Appellant.





No. 10-50361
D.C. No.
3:09-cr-02918MMA-1
OPINION

Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted
May 3, 2011—Pasadena, California
Filed February 6, 2012
Before: Alfred T. Goodwin and Kim McLane Wardlaw,
Circuit Judges, and Brian M. Cogan, District Judge.*
Opinion by Judge Goodwin

*The Honorable Brian M. Cogan, U.S. District Judge for the Eastern
District of New York, sitting by designation.

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

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

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. ProaTovar, 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

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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.
A.

FACTUAL AND PROCEDURAL BACKGROUND
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.
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
1

Under 8 U.S.C. § 1225, the Attorney General also has the discretion to
remove inadmissible arriving aliens through expedited proceedings. See 8

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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
C.F.R. § 1235.3 (outlining requirements for expedited removal proceedings under § 1225). It should be noted, however, that these expedited proceedings are different in several respects from those involved here under
§ 1228. See generally United States v. Barajas-Alvarado, 655 F.3d 1077,
1081-82 (9th Cir. 2011).

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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 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] persecu2

Prior to 2003, immigration offenses were largely handled by the Immigration and Naturalization Service (“INS”). This agency ceased to exist in
2003, and most of its functions were transferred to the Department of
Homeland Security and its subagency, ICE. See Homeland Security Act
of 2002, §§ 441, 471, 6 U.S.C. §§ 251, 291; Morales-Izquierdo v. Gonzales, 486 F.3d 484, 489 n.7 (9th Cir. 2007) (en banc). To minimize confusion, we refer only to ICE, although Reyes’s 2001 removal was handled
by INS.

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tion 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
3

While not disputing the accuracy of the statements attributed to him,
Reyes notes that the name of the interpreter is not provided on the form,
just the interpreter’s license number.

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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 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 that
they have money.” Further, he alleges that “[m]embers of the
gang MS-13 beat me and tried to kill me in Guatemala
between 2001 and 2003.”
As to the statements he made in 2007 when he withdrew
his request for a reasonable fear determination, Reyes testified:
“In 2007, I told the immigration officer about my
fear of returning to Guatemala. I was then referred
to an asylum officer. I spoke with the asylum officer
for only a few minutes. He did not explain my rights
to me, and at no time did I consult with an attorney.
I was told that I did not have a chance, and that I
should initial a form so they could send me out.”

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Following a hearing, the district court from the bench
denied Reyes’s motion to dismiss the indictment. Based on
the language in the Notice of Intent, the court found that
Reyes “was advised of his right to counsel and that he waived
it.” The court stated that “some deference and some validity
has to be given to these official documents. . . . It just seems
the document here is so clear cut, and there is no evidence to
the contrary other than [Reyes’s] own declaration.” Accordingly, the district court did not address Reyes’s claim to prejudice.
II.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction to review a final judgment of the district court pursuant to 28 U.S.C. § 1291. We review de novo
a claim that a defect in a prior removal proceeding precludes
reliance on the final removal order in a subsequent § 1326
proceeding. United States v. Ramos, 623 F.3d 672, 679 (9th
Cir. 2010) (quoting United States v. Lopez-Vasquez, 1 F.3d
751, 752 (9th Cir. 1993) (“A claim that a defect in a prior
deportation order precludes reliance on the deportation in a
prosecution for violation of 8 U.S.C. § 1326 presents mixed
questions of law and fact requiring us to exercise judgment
about legal principles.” (internal quotation marks and citation
omitted)). We review the district court’s findings of fact for
clear error. Id. at 680. We may affirm a district court’s denial
of a motion to dismiss an indictment on any basis supported
by the record. United States v. Davis, 336 F.3d 920, 922 (9th
Cir. 2003).
III.

DISCUSSION

Reyes contends that his indictment for illegal reentry
should be dismissed because the 2001 removal order was
entered in violation of his due process rights. “Because the
underlying removal order serves as a predicate element of an
illegal reentry offense under § 1326, a defendant charged with
that offense may collaterally attack the removal order under

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the due process clause.” United States v. Pallares-Galan, 359
F.3d 1088, 1095 (9th Cir. 2004) (citing United States v.
Mendoza-Lopez, 481 U.S. 828, 837-38 (1987) (“Our cases
establish that 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.”)).
[1] To succeed in such a challenge, however, an alien must
demonstrate that: “(1) the alien exhausted any administrative
remedies that may have been available to seek relief against
the order; (2) the deportation proceedings at which the order
was issued improperly deprived the alien of the opportunity
for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d).4 “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.” United States v.
Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010) (citing
United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th
Cir. 2004)).
Reyes argues that his due process rights were violated
because he was not advised of his right of appeal or his right
to counsel in a language that he could understand, making any
waiver of these rights invalid. Further, he claims that the
denial of his right to counsel inherently prejudiced his ability
to obtain immigration relief, satisfying the fundamental
unfairness requirement under § 1326(d)(3) without a further
showing of actual prejudice. Reyes also argues that he was
actually prejudiced by the denial of his right to counsel
because with such assistance, he would have been able to
present a plausible claim for deferral of removal under CAT.
4

Through the addition of subsection (d) to 8 U.S.C. § 1362 in 1996,
Congress partially codified the Court’s decision in Mendoza-Lopez.
United States v. Garcia-Martinez, 228 F.3d 956, 959 n.5 (9th Cir. 2000).

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A.
1.

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Due Process Violations
Right to Appeal

[2] “[A]n alien is barred from collaterally attacking the
validity of an underlying deportation order if he validly
waived the right to appeal that order during the deportation
proceedings.” United States v. Gonzalez, 429 F.3d 1252, 1256
(9th Cir. 2005) (internal quotation marks and citation omitted). Accordingly, we must first determine whether Reyes validly waived his right of appeal by signing the waiver section
of the 2001 Notice of Intent. If Reyes did not validly waive
his right of appeal, the first two requirements under § 1326(d)
will be satisfied. See Ubaldo-Figueroa, 364 F.3d at 1049-50.
Even in expedited removal proceedings conducted under 8
U.S.C. § 1228, an alien’s waiver of the right of appeal must
be both considered and intelligent in order to be valid. See
Gonzalez, 429 F.3d at 1256; United States v. Arrieta, 224
F.3d 1076, 1079 (9th Cir. 2000). “The government bears the
burden of proving valid waiver in a collateral attack of the
underlying removal proceedings,” Ramos, 623 F.3d at 680,
and it must do so by clear and convincing evidence. PallaresGalan, 359 F.3d at 1097 (quoting Gete v. INS, 121 F.3d 1285,
1293 (9th Cir. 1997)).
Based on the language of the Notice of Intent, the district
court found that Reyes had validly waived his right of appeal.
This conclusion would be sound if Reyes had not contested
his understanding of the notice. “[W]here the government
introduces official records which on their face show a valid
waiver of rights in connection with a deportation proceeding,
the burden shifts to the defendant to come forward with evidence tending to prove the waiver was invalid.” United States
v. Galicia-Gonzalez, 997 F.2d 602, 604 (9th Cir. 1993)
(affirming waiver where the defendant failed to even suggest
that “his rights were improperly explained or that he was
coerced into waiving them”).

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Yet Reyes specifically testified that he cannot read English
and that Officer Mata did not advise him of the rights detailed
in the Notice of Intent. While dismissing Reyes’s declaration
as “self-serving,” the district court failed to address the key
factual issue of whether Reyes was actually advised of the
contents of the Notice of Intent in a language he could understand.5 See 8 CFR § 238.1(b)(2)(v) (“[ICE] must either provide the alien with a written translation of the Notice of Intent
or explain the contents of the Notice of Intent to the alien in
the alien’s native language or in a language that the alien
understands.”).
[3] A waiver of rights cannot be found to have been considered or intelligent where there is no evidence that the
detainee was first advised of those rights in a language he
could understand. See Ramos, 623 F.3d at 681 (“We cannot
conclude that waiver of rights, including the right to appeal,
was ‘considered or intelligent’ without evidence that a
detainee was ‘able to understand the questions posed to him’
when put to the choice of foregoing all rights or remaining in
detention until he could appear before an IJ.” (quoting PerezLastor v. INS, 208 F.3d 773, 778 (9th Cir. 2000) (“It is longsettled that a competent translation is fundamental to a full
and fair hearing. If an alien does not speak English, deportation proceedings must be translated into a language the alien
understands.”)).
5

To the extent that the district court’s statements imply a finding of fact
that either Reyes could read the Notice of Intent or that he was advised
of the rights outlined therein in Spanish, such a finding was clearly erroneous because it is unsupported by the record. See United States v. Hinkson,
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) (factual findings are clearly
erroneous when they are “without ‘support in inferences that may be
drawn from the facts in the record’ ”) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 577 (1985)).
While the government has defended the district court’s finding of
waiver, it largely conceded that the record here is insufficient to establish
that Reyes understood his rights.

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[4] The language of the Notice of Intent falls far short of
clear and convincing evidence that Reyes was advised of his
right of appeal in a language he could understand. The only
indication that Reyes was advised of his rights in Spanish is
the notation that Officer Mata “explained and/or served” it to
Reyes in Spanish. This language can be read to mean that
Reyes was only served with the Notice of Intent in Spanish,
and the Government failed to adduce evidence suggesting that
the notice was in fact explained in Spanish. Because the
record is unclear on this point, we cannot simply presume that
Reyes was advised of his rights in a language he could understand. See Ramos, 623 F.3d at 680 (“We ‘indulge every reasonable presumption against waiver,’ and do ‘not presume
acquiescence in the loss of fundamental rights.’ ”) (quoting
Lopez-Vasquez, 1 F.3d at 753).
Even if we were to assume from this notation that some
explanation was given, there is no evidence as to the extent
of the explanation given or Officer Mata’s ability to communicate in Spanish. Further, there is no indication that such an
explanation extended to the pre-printed waiver on the second
page of the notice. See Pallares-Galan, 359 F.3d at 1096-98
(explaining that evidence of a detainee’s understanding of his
right of appeal is not sufficient to establish a considered and
intelligent waiver of that right). In Ramos, we rejected a
waiver given after an immigration officer who was not fluent
in Spanish attempted to explain to the detainee in broken
Spanish the rights specified in a stipulated removal form. 623
F.3d at 681 (“The government argues that Ramos’s waiver
was ‘considered and intelligent’ because Ramos failed to give
any indication to the deportation officer that he did not understand or appreciate what he was signing. However, a deportation officer’s ‘feeling’ that a detainee understood her broken
attempts to speak Spanish is insufficient to meet the government’s burden.”). We concluded that “Ramos’s waiver of
appeal and of the due process rights specified in the Stipulated
Removal form was not ‘considered or intelligent’ because he
did not receive a competent Spanish language translation of

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his right to appeal when he signed the form.” Id. at 680; see
also id. at 681 (“Moreover, we cannot conclude that Ramos’s
waiver was ‘considered and intelligent’ because the government has not established by ‘clear and convincing evidence’
that he received adequate advisement of the consequences of
his waiver of appeal.”) (citing Pallares-Galan, 359 F.3d at
1097). There is even less evidence here of a competent translation because the government has proffered no evidence that
Officer Mata made any attempt to explain to Reyes his rights
before he waived them.
[5] Under these circumstances, the government has failed
to meet its burden of proving that Reyes’s waiver of his right
of appeal was considered and intelligent. Because he did not
validly waive his right of appeal, Reyes is exempted from the
requirement under 8 U.S.C. § 1326(d)(1) that he exhaust all
administrative remedies before collaterally attacking the 2001
removal order. See Ubaldo-Figueroa, 364 F.3d at 1050
(“[W]e hold that although Ubaldo-Figueroa did not exhaust
his administrative remedies by appealing his removal order to
the BIA in 1998, he is exempted from the exhaustion bar
because his waiver of his right to appeal was not sufficiently
‘considered and intelligent’ under the Due Process Clause of
the Fifth Amendment.”). Further, Reyes has met the requirement under § 1326(d)(2) that “the deportation proceedings at
which the order was issued improperly deprived [him] of the
opportunity for judicial review” because he was not advised
of his right to appeal the final removal order. Id. (“[W]e find
that Ubaldo-Figueroa was deprived of the opportunity for
meaningful judicial review because the IJ did not inform him
of his right to appeal his deportation order.”).
2.

Right to Counsel

[6] Although Reyes has satisfied the first two prongs of
§ 1326 based on his right of appeal, we briefly address the
due process violation related specifically to his right to counsel because his claim to prejudice under the third prong rests

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squarely on the impingement of this right. “Although there is
no Sixth Amendment right to counsel in an immigration hearing, Congress has recognized it among the rights stemming
from the Fifth Amendment guarantee of due process that
adhere to individuals that are the subject of removal proceedings.” Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir.
2004) (citing Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir.
1985)). While “[t]he right to counsel in immigration proceedings is rooted in the Due Process Clause,” Biwot v. Gonzales,
403 F.3d 1094, 1098 (9th Cir. 2005), the right to counsel in
expedited removal proceedings is also secured by statute. 8
U.S.C. § 1228(b)(4)(B) (“[T]he alien shall have the privilege
of being represented (at no expense to the government) by
such counsel, authorized to practice in such proceedings, as
the alien shall choose.”); 8 C.F.R. § 238.1(b)(2)(i) (“[The
Notice of Intent] shall advise that the alien: has the privilege
of being represented, at no expense to the government, by
counsel of the alien’s choosing, as long as counsel is authorized to practice in removal proceedings . . . .”); see also 8
C.F.R. § 238.1(b)(2)(iv) (requiring ICE to provide aliens facing expedited removal “with a list of available free legal services programs”).
[7] As discussed previously, the record fails to show that
Reyes was advised of any of his due process rights, including
his right to counsel, in a language he could understand. Such
an explanation of the due process rights outlined in the Notice
of Intent is required under 8 C.F.R. § 238.1(b)(2)(v). See
Ramon-Sepulveda v. INS, 743 F.2d 1307, 1310 (9th Cir. 1984)
(“It is a well-known maxim that agencies must comply with
their own regulations.” (internal quotation marks and citation
omitted)). This procedural error in Reyes’s expedited removal
constitutes a violation of his due process right to counsel. See
Ramos, 623 F.3d at 683 (holding that failure to “receive a
competent explanation of his rights in a language he could
understand” invalidated Ramos’s express waiver of the right
to counsel and thereby violated his due process right to counsel).

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[8] Further, the district court erred in finding that Reyes
waived his right to counsel. The Notice of Intent signed by
Reyes includes no express waiver of the right to counsel.6
Accordingly, the district court’s finding that he did waive his
right to counsel was clearly erroneous because no such affirmative waiver is stated in the record or could be assumed. See
Hinkson, 585 F.3d at 1262; Tawadrus, 364 F.3d at 1103 (“In
order for a waiver to be valid, an IJ must generally: (1)
inquire specifically as to whether petitioner wishes to continue without a lawyer; and (2) receive a knowing and voluntary affirmative response.” (emphasis added and internal
citations omitted)); Ramos, 623 F.3d at 680 (noting that we do
not presume waiver of fundamental rights). Therefore, Reyes
was not properly advised of his due process right to counsel
nor did he waive this right.
B.

Prejudice

[9] As noted, “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 (citing UbaldoFigueroa, 364 F.3d at 1048). Having established that the
removal proceedings here violated Reyes’s due process right
to counsel, we turn to his claim of prejudice resulting from
6

Neither 8 U.S.C. § 1228(b) nor 8 C.F.R. § 238.1 requires a detainee to
waive his right to counsel when admitting a charge of being removable.
Where as here, an alien concedes his deportability, a “deciding Service
officer shall issue and cause to be served upon the alien a Final Administrative Removal Order that states the reasons for the deportation decision”
without a hearing. 8 C.F.R. § 238.1(d)(1); see also Garcia-Martinez, 228
F.3d at 960 (explaining expedited removal proceedings under § 1228).
Thus the requirement that an alien expressly waive his right to counsel
when appearing pro se at a removal hearing before an immigration judge
would not apply here. See Tawadrus, 364 F.3d at 1103. As a result, it is
not clear that Reyes’s failure to waive his right to counsel alone would
support a due process or procedural violation related to his expedited
removal proceedings.

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this violation. First, Reyes argues that a due process violation
of an alien’s right to counsel during removal proceedings
establishes per se prejudice—requiring no further showing of
actual prejudice—for the purpose of a collateral attack on a
final removal order under § 1326(d)(3).7 Second, he argues
that he was actually prejudiced because with the assistance of
counsel, he could have presented a plausible claim to deferral
of removal under CAT.
1.

Per Se Prejudice

In establishing a Fifth Amendment right to collaterally
attack a removal order, the Supreme Court in Mendoza-Lopez
held that “[t]he fundamental procedural defects of the deportation hearing in this case rendered direct review of the Immigration Judge’s determination unavailable to respondents.”
481 U.S. at 841. While declining “to enumerate which procedural errors are so fundamental that they may functionally
deprive the alien of judicial review,” the Court recognized
that some procedural “abuses could operate, under some circumstances, to deny effective judicial review of administrative determinations.”8 Id. at 839 n.17. Based on MendozaLopez, the initial Proa-Tovar panel adopted a bright-line rule
that violation of an alien’s due process right to judicial review
of a removal order made that order inadmissible in a subsequent illegal reentry case, regardless of whether actual prejudice could be shown. United States v. Proa-Tovar, 945 F.2d
1450, 1453-54 (9th Cir. 1991) (reading Mendoza-Lopez “as a
bright-line rule,” in order “to encourage the INS to make certain that every person deported as the result of an administra7

Although we found that the defendant in Ramos was denied his right
to counsel in the underlying removal proceeding, we did not address
whether prejudice could be presumed from this due process violation. 623
F.3d at 683-84.
8
Congress partially codified this decision in 1996 through the addition
of subsection (d) to 8 U.S.C. § 1362. United States v. Garcia-Martinez,
228 F.3d 956, 959 n.5 (9th Cir. 2000).

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tive hearing was adequately apprised, on the record, of his
right to appeal”), overruled en banc by Proa-Tovar, 975 F.2d
592 (9th Cir. 1992).
Taking Proa-Tovar en banc, our circuit held that MendozaLopez did not support this bright-line approach and affirmed
prior circuit cases that required a showing of prejudice.9 975
F.2d at 595. Our court stated:
We are . . . satisfied that the [Supreme] Court has not
eliminated prejudice from the equation. Our preMendoza-Lopez cases required a showing of prejudice when collateral attacks on immigration orders
were made in prosecutions under section 1326. See,
e.g., United States v. Nicholas-Armenta, 763 F.2d
[1089, 1091(9th Cir. 1985)]; United States v. CallesPineda, 627 F.2d 976, 977-78 (9th Cir. 1980); cf.
Colindres-Aguilar v. INS, 819 F.2d 259, 261 (9th
Cir. 1987) ([on direct appeal,] due process challenge
to INS proceeding requires showing of actual prejudice). We hold that the rule established in those
cases also applies when the attack is on the ground
that there has been a deprivation of the right to direct
appeal of the administrative proceedings.
Id.
9

As the author of the original panel opinion, I dissented in Proa-Tovar,
arguing that the majority decision “encourages [immigration] hearing officers to continue to ignore proper procedure in bulk deportation hearings.”
975 F.2d at 596 (Goodwin, J., dissenting) (“While the result accomplishes
no injustice in this case, it invites future cases, and teaches the wrong lesson.”). The steady recurrence of these cases proves the point that there is
little incentive for the government to correct procedures that regularly
result in due process violations when most claims will ultimately fail to
satisfy the prejudice requirement. Despite this sad commentary on our collective commitment to due process, my concerns over judicial economy
are now just spilt milk.

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While not cited in Proa-Tovar, one of our pre-MendozaLopez cases to require a showing of prejudice, United States
v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir. 1986), involved
an immigration judge’s failure to properly advise an alien of
his right to counsel. In Cerda-Pena, a defendant facing illegal
reentry charges alleged multiple procedural violations at his
prior deportation hearing, including: “(1) the Immigration and
Naturalization Service (INS) failed to inform appellant of his
right to contact the Mexican Consul, (2) the immigration
judge failed adequately to apprise appellant of his right to be
represented by counsel, and (3) the INS did not provide appellant with a competent interpreter at his deportation hearing.”
Id. at 1376. We rejected the defendant’s assertion “that he
showed prejudice by producing evidence indicating that he
would have availed himself of the procedural protections
denied him and that he was not required to show that such an
availment actually had the potential for changing the outcome
of the proceedings.” Id. We held that “[t]he district court
applied the proper legal standard when it required appellant to
make some showing that the alleged violations actually had
the potential for affecting the outcome of his deportation proceedings.” Id. at 1379.
[10] Although stated in a footnote, the Cerda-Pena court
directly addressed the suggestion “that an effective denial of
counsel might be considered per se prejudicial” during a collateral attack. Id. at 1377 n.3 (discussing the applicability of
Rios-Berrios v. INS, 776 F.2d 859, 863-64 (9th Cir. 1985)).
Despite finding that an absolute denial of an alien’s right to
representation during immigration proceedings might be presumed to be prejudicial, the court concluded that simply failing to properly advise the alien of his right to counsel was not
per se prejudicial. Id. (“While recognizing that an outright
refusal to allow an alien the opportunity to obtain representation may be such an egregious violation of due process so as
not to require any further showing of prejudice, this Court
believes that an immigration judge’s failure adequately to
apprise an alien of his or her right to representation should

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only invalidate the deportation if actual prejudice is shown, as
is the case with other violations of INS regulations and of due
process,” citing United States v. Rangel Gonzales, 617 F.2d
529, 530 (9th Cir. 1980) (challenge based on violation of an
INS regulation must include a showing of prejudice);
Nicholas-Armenta, 763 F.2d at 1091(due process challenges
must include a showing of prejudice)).10
[11] Our decision in Proa-Tovar clearly held that the
Supreme Court did not remove prejudice from the evaluation
of due process violations and reaffirmed prior cases in which
we had imposed this requirement on collateral attacks against
removal orders. 975 F.2d at 595. Although decided before
Mendoza-Lopez and the amendment of 8 U.S.C. § 1326,
Cerda-Pena is just such a case, and applied here, it forecloses
Reyes’s argument that prejudice should be presumed based on
ICE’s failure properly to advise him of his right to counsel.
Similar to the dicta in Cerda-Pena that a more serious violation of the right to counsel might require a presumption of
prejudice, our court in Proa-Tovar noted that “there may well
be times when the administrative proceedings were so flawed
that effective judicial review will be foreclosed.” Id. (referencing the Supreme Court’s statements in Mendoza-Lopez
that some procedural “abuses could operate, under some circumstances, to deny effective judicial review of administrative determinations,” 481 U.S. at 839 n.17).
10

This evaluation of prejudice resulting from the denial of right to counsel during a prior immigration proceeding was largely mirrored by the
First Circuit. See Loaisiga, 104 F.3d at 488 (“The ‘right to counsel,’ says
Loaisiga, is an exception to the general rule that prejudice must be shown.
But argument by talisman is not very productive; impairments of the right
to counsel differ in degree and context, and such differences affect
whether and to what extent prejudice must be shown. Perhaps there may
be deportations where a denial of counsel was so flagrant, and the difficulty of proving prejudice so great, as to argue for presuming harm. But
this is not such a case.” (internal citations omitted)).

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[12] In light of the discussion in Cerda-Pena and the subsequent affirmance of the general rule it applied by ProaTovar, we conclude that prejudice should not be presumed
here. We have previously referred to current immigration law
as “a labyrinth that only a lawyer could navigate.” Biwot, 403
F.3d at 1098. Nonetheless, if a defendant aided by counsel is
unable subsequently to identify any plausible path to relief
that might have prevented his prior removal, the failure to
advise him of his right to counsel at the time of the removal
proceedings cannot be considered inherently prejudicial. See
Proa-Tovar, 975 F.2d at 595 (“By all accounts, Proa-Tovar
would have been deported anyway. . . . The fact that the IJ did
not punctiliously follow the law and regulations regarding
direct appeals has made no legal difference at all.”). We therefore hold that in order to mount a successful collateral attack
on a prior removal order under § 1326(d), an alien who was
convicted of an aggravated felony and was not properly
advised of his right to counsel or did not waive this right must
show that he was actually prejudiced by this due process violation.11
[13] Although a defendant who is affirmatively prevented
from exercising his right to be represented by counsel might
claim per se prejudice, see Cerda-Pena, 799 F.2d at 1377 n.3,
the facts here indicate only that Reyes was not properly
advised of his right to counsel and did not waive this right.
Therefore, he must show that he was actually prejudiced as a
result of this due process violation.
11

At oral argument, defense counsel argued that Reyes should, at a
minimum, be entitled to a rebuttable presumption of prejudice. Shifting
the burden of proof in this case, however, would contradict Congress’s
instruction that “[a]n alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States.” 8 U.S.C.
§ 1228(c). We are cognizant of the reality that without the assistance of
counsel, almost no alien facing expedited removal has a realistic chance
at relief. We believe, however, that this factor is best considered when
evaluating actual prejudice, specifically whether the alien could have plausibly obtained relief if he had been capably represented.

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2.

Actual Prejudice

[14] Reyes contends that he was actually prejudiced
because a capable attorney could have sought deferral of his
removal in 2001 based on the Convention Against Torture. To
establish prejudice as a result of ICE’s failure to adequately
advise him of his right to counsel, Reyes need only show that
there were “plausible grounds” on which he could have been
granted relief from removal in 2001. Ramos, 623 F.3d at 684
(“A defendant need not conclusively demonstrate that he or
she would have received relief to show prejudice, but must
show only that there were ‘plausible grounds for relief.’ ”)
(quoting United States v. Gonzalez-Valerio, 342 F.3d 1051,
1054 (9th Cir. 2003)); Pallares-Galan, 359 F.3d at 1104 (“[A
defendant] is entitled to the dismissal of his indictment if,
upon a review of the record, it appears that an IJ could have
concluded that his potential claim for relief from deportation
would be ‘plausible.’ ”). A plausible claim to relief, however,
requires some evidentiary basis on which relief could have
been granted, not merely a showing that some form of immigration relief was theoretically possible. Compare United
States v. Cisneros-Resendiz, 656 F.3d 1015, 1021-23 (9th Cir.
2011) (holding that appellant did not demonstrate a plausible
claim to relief where the evidence cited would have weighed
against granting him permission to withdraw his application
for admission); United States v. Muro-Inclan, 249 F.3d 1180,
1185 (9th Cir. 2001) (holding that appellant did not establish
a plausible claim to relief under 8 U.S.C. § 212(h) where
“[t]he hardships alleged by Appellant represent the common
results of deportation, and do not represent the type of additional evidence of extreme hardship beyond the normal deprivation of family support.” (internal quotation marks and
citation omitted)); with Arrieta, 224 F.3d at 1082-83 (holding
that appellant did establish a plausible claim to relief under 8
U.S.C. § 212(h) based on evidence of extreme hardship to his
family that was more than economic deprivation); UbaldoFigueroa, 364 F.3d at 1050-51 (holding that appellant established a plausible claim to relief under 8 U.S.C. § 1182(c)

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where the balance of the equities favored discretionary grant
of relief).
[15] Because of his prior convictions for aggravated felonies, Reyes’s ability to obtain immigration relief in 2001 was
severely limited. See generally United States v. Amador-Leal,
276 F.3d 511, 516 (9th Cir. 2002) (explaining that after the
Antiterrorism and Effective Death Penalty Act of 1996 and
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996, “it is now virtually certain that an aggravated
felon will be removed”). Reyes could not receive any discretionary relief from removal because he had been placed in
expedited proceedings based on his felony convictions.12 See
8 U.S.C. § 1228(b)(5) (“No alien described in this section
shall be eligible for any relief from removal that the Attorney
General may grant in the Attorney General’s discretion.”).
Further, he was ineligible for the standard mandatory forms
of relief of asylum, withholding, or withholding of removal
under CAT. See 8 U.S.C. § 1158(b)(2)(A)(ii) (barring asylum
for aliens “convicted by a final judgment of a particularly
serious crime”); 8 U.S.C. § 1231(b)(3)(B)(ii) (barring withholding for aliens “convicted by a final judgment of a particularly serious crime”); 8 C.F.R. § 1208.16(d)(2) (barring
withholding of removal under CAT for aliens “convicted of
a particularly serious crime”).
12
Reyes briefly suggests that a persuasive attorney could have potentially convinced the government to use its discretion to place him in standard removal proceedings, which theoretically would have allowed the
Government to administratively close the removal case against him. Reyes
suggests no reason why the Government would take such actions, however. Indeed, the government is statutorily barred from cancelling removal
proceedings for aliens convicted of aggravated felonies. See 8 U.S.C.
§ 1229b(a)(3). In light of the seriousness of his prior convictions for carjacking and assault with a firearm, we find his speculative suggestion as
to administrative closure wholly implausible. See Memorandum from John
Morton, ICE Director, on Priorities for the Apprehension, Detention, and
Removal of Aliens (Mar. 2, 2011), available at http://www.ice.gov/doclib/
news/releases/ 2011/110302washingtondc.pdf (indicating that removal of
aggravated felons is ICE’s highest priority).

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[16] Due to his status as an aggravated felon, the only form
of immigration relief available to Reyes in 2001 was deferral
of removal under CAT. See 8 CFR § 1208.17(a) (“An alien
who: has been ordered removed; has been found under
§ 1208.16(c)(3) to be entitled to protection under the Convention Against Torture; and is subject to the provisions for mandatory denial of withholding of removal under
§ 1208.16(d)(2) or (d)(3) [due to conviction for aggravated
felony], shall be granted deferral of removal to the country
where he or she is more likely than not to be tortured.”).
“[D]eferral of removal provides a less permanent form of protection than withholding of removal and one that is more easily and quickly terminated if it becomes possible to remove
the alien consistent with Article 3 of the CAT, while also
ensuring that such aliens are not returned to a country where
they would be tortured.” Negusie v. Holder, 555 U.S. 511,
541 n.1 (2009) (Thomas, J., dissenting) (internal alterations,
quotation marks, and citations omitted) (explaining that “deferral of removal” was created in order to satisfy the government’s treaty obligations under CAT that “[n]o State Party
shall . . . return . . . a person to another State where there are
substantial grounds for believing that he would be in danger
of being subjected to torture, Art. 3, S. Treaty Doc. No. 10020, at 20”) (internal quotation marks omitted); see also Pierre
v. Att’y Gen., 528 F.3d 180, 184-86 (3d Cir. 2008) (describing
the process by which the treaty’s requirements were codified).
With the aid of his current counsel, Reyes contends that he
had a plausible claim to deferral of removal under CAT in
2001 based on gang violence in the country. To obtain relief
under CAT, “[t]he burden of proof is on the applicant . . . to
establish that it is more likely than not that he or she would
be tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2); see also Delgado v. Holder, 648
F.3d 1095, 1108 (9th Cir. 2011) (“To obtain relief, Delgado
was required to prove that ‘more likely than not, [ ]he will be
tortured at the instigation of, or with the acquiescence of the
[Salvadoran] government.’ ”) ( quoting Silaya v. Mukasey,

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524 F.3d 1066, 1073 (9th Cir. 2008) (alterations in original)).
In assessing this question, immigration judges are instructed
to consider: “(i) Evidence of past torture inflicted upon the
applicant; (ii) Evidence that the applicant could relocate to a
part of the country of removal where he or she is not likely
to be tortured; (iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where
applicable; and (iv) Other relevant information regarding conditions in the country of removal.” 8 C.F.R. § 1208.16(c)(3).
[17] Reyes’s claim to relief under CAT is implausible
because he identifies no evidence of persecution occurring
prior to his removal in 2001, nor does he identify any evidence of widespread human rights violations occurring in
Guatemala prior to or during 2001. Reyes’s claim principally
relies on his testimony that gang members “beat me and tried
to kill me” after he was returned to Guatemala. He also testifies that a close friend was murdered in Guatemala in 2009.
These events occurred years after Reyes was removed and
more than a decade after he first left Guatemala for the United
States in 1991. His counsel states “[i]t is unclear what precisely motivated his departure” in 1991. While post-2001
events might suggest a basis upon which Reyes could seek
deferral of removal now, they are not evidence on which an
Immigration Judge in 2001 could have found it was more
likely than not he would be tortured upon return to Guatemala. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir.
2008) (“[T]he petitioner must demonstrate that he would be
subject to a ‘particularized threat of torture.’ ”) (quoting
Lanza v. Ashcroft, 389 F.3d 917, 936 (9th Cir. 2004)). To the
contrary, his statements made in 2007—after being beaten by
gang members—clearly indicate that he did not fear returning
to Guatemala even after his removal in 2001.
Further, Reyes has presented no evidence of relevant country conditions in Guatemala in 2001, much less that flagrant
violations of human rights were widespread there. The only
evidence proffered beyond Reyes’s declaration was a

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Newsweek article from 2005 briefly mentioning that MS-13
had established itself in Guatemala.13 This article does not
suggest the type of widespread abuse that would support CAT
relief based on country conditions alone. Cf. Kamalthas v.
INS, 251 F.3d 1279, 1282-84 (9th Cir. 2001) (holding that the
BIA erred in failing to “consider probative evidence in the
record of country conditions which confirm that Tamil males
have been subjected to widespread torture in Sri Lanka”).
[18] In light of the fact that Reyes was effectively denied
the assistance of counsel in 2001, we have considered the evidence presented now in the light most favorable to him. Yet
even the best counsel cannot succeed on a claim that has no
factual support, and the record here does not indicate any evidence in existence in 2001 upon which Reyes could have
sought CAT relief. Accordingly, we hold that he has not demonstrated a plausible claim to relief from the 2001 removal
order and was therefore not prejudiced by the violation of his
due process right to counsel during his removal proceedings.
IV.

CONCLUSION

Reyes did not waive his right to counsel and was denied his
due process right to counsel because he was not properly
advised of his rights in a language that he could understand.
We hold that this violation of his right to counsel was not
inherently prejudicial, however. Because Reyes cannot demonstrate that he had a plausible claim to relief in 2001, he was
not actually prejudiced as a result of the due process violations in his removal proceedings. Entry of the 2001 removal
order was therefore not fundamentally unfair under 8 U.S.C.
§ 1326(d).
13

In his briefing, Reyes’s counsel references reports from U.S. government and non-governmental organizations finding widespread corruption
in Guatemala, but these reports are neither identified in the briefing, nor
have they been submitted to the court.

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AFFIRMED.

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