United States v. Jesus Valdez-Novoa

Opinion by Judge BYBEE; Dissent by Judge McKEOWN.

OPINION

Jesus Valdez-Novoa, a native and citizen of Mexico, appeals his conviction for attempting to enter the United States without consent after having been previously removed in violation of 8 U.S.C. § 1326 (a). We have jurisdiction under 28 U.S.C. § 1291 . We affirm.

Valdez-Novoa entered the U.S. without inspection in 1983 and has never obtained legal status. On June 11, 1999, an Immigration Judge (IJ) deemed Valdez-Novoa removable and prohibited him from reentering the U.S. at any time because he had been convicted of an aggravated felony. Throughout the next decade, Valdez-No-voa returned to the U.S. on several occasions and each time he was subsequently removed pursuant to the IJ’s 1999 order. On February 16, 2011, Valdez-Novoa attempted to reenter the U.S. on foot at the San Ysidro Port of Entry. At trial, the government introduced a videotaped conversation between Valdez-Novoa and a Department of Homeland Security (DHS) officer in which Valdez-Novoa explained that he was attempting to cross the border using an identification document bearing another person’s name that he had purchased in Mexico. He also confessed that…

dissenting:

I respectfully dissent. As the majority notes, Valdez-Novoa’s case turns on whether the Immigration Judge’s (“IJ’s”) failure to advise him of his apparent eligibility for voluntary departure was a due process violation and whether that violation was prejudicial. I write separately because the government earlier conceded that there was a due process violation, and because the majority elevates our benchmark for prejudice, the “plausibility” inquiry, to the higher standard of either preponderance or probability. Because it is plausible that the IJ would have exercised discretion to grant voluntary departure, I would reverse the district court’s judgment.

Before the district court, the government conceded that there was a “due process violation, in light of later — developing case law,” and focused its argument solely on the prejudice issue. The court implicitly accepted the violation as conceded, and it too addressed only prejudice. The government has now entirely changed its position, and maintains on appeal that there was no due process violation in the earlier proceedings.

The majority reasons that we may reach the government’s novel argument under an exception…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50336 Plaintiff-Appellee, D.C. No. v. 3:11-cr-00872-JAH-

JESUS VALDEZ-NOVOA,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Argued and Submitted November 6, 2013—Pasadena, California

Filed July 28, 2014

Before: M. Margaret McKeown, Ronald M. Gould, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee; Dissent by Judge McKeown UNITED STATES V. VALDEZ-NOVOA

SUMMARY*

Criminal Law

The panel affirmed a conviction for attempting to enter the United States without consent after having been previously removed under 8 U.S.C. § 1326(a).

The defendant collaterally attacked the underlying June 11, 1999, removal order, alleging that the immigration judge erred in concluding that he had been convicted of an aggravated felony (based on his conviction of reckless driving causing great bodily injury) and therefore violated his right to due process by failing to advise him of his apparent eligibility for voluntary…