Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding D.C. No. 3:09-cr-02918-MMA-1
The opinion of the court was delivered by: Goodwin, Senior Circuit Judge:
Argued and Submitted May 3, 2011-Pasadena, California
Before: Alfred T. Goodwin and Kim McLane Wardlaw, Circuit Judges, and Brian M. Cogan, District Judge.*fn1
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 re-entry 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 re-entry 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 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. FACTUAL AND PROCEDURAL BACKGROUND
A. 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).*fn2
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 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.*fn3
During an interview conducted in Spanish on November 19, 2007, Reyes told an ICE agent that he "fear[ed] persecu-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."*fn4 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 ...