United States v. Almanza-Vigil

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 7, 2019

Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 17-2007

OSCAR ALMANZA-VIGIL,

Defendant - Appellant.
_________________________________

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 2:15-CR-02605-RB-1)
_________________________________

James N. Langell, Assistant Federal Public Defender (Stephen P. McCue, Federal Public
Defender, with him on the briefs), Office of the Federal Public Defender, Las Cruces,
New Mexico, for Appellant.

Marisa A. Ong, Assistant United States Attorney (James D. Tierney, Acting United States
Attorney, with her on the brief), Office of the United States Attorney, Las Cruces, New
Mexico, for Appellee.
_________________________________

Before PHILLIPS, KELLY, and MURPHY, Circuit Judges.
_________________________________

PHILLIPS, Circuit Judge.
_________________________________

The Immigration and Naturalization Act (INA) defines “aggravated felony” to

include “illicit trafficking in a controlled substance,” 8 U.S.C. § 1101(a)(43)(B),

making removal from this country “a virtual certainty” for a noncitizen convicted of
such a crime, Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2017). The INA imposes

serious consequences on a noncitizen convicted of an aggravated felony: (1) he

becomes deportable, 8 U.S.C. § 1227(a)(2)(A)(iii); (2) he loses the ability to obtain

discretionary relief, like cancellation of removal, id. § 1229b(a)(3), or voluntary

departure, id. § 1229c(a)(1); and (3) he is subject to expedited removal proceedings,

with no immigration judge present, id. § 1228(a)(1).

That helps explain the stakes for Oscar Almanza-Vigil. In 2007, he pleaded

guilty in Colorado state court to “selling or distributing” methamphetamine in

violation of Colorado Revised Statutes § 18-18-405(1)(a) (2006), for which he

received a four-year prison sentence. In 2009, when the state paroled him,

Immigration and Customs Enforcement (ICE) initiated expedited removal

proceedings against him, declaring that he had committed an aggravated felony. With

that designation, he had no right to an administrative hearing before an immigration

judge. Compare 8 U.S.C. § 1229a (“An immigration judge shall conduct proceedings

for deciding the inadmissibility or deportability of an alien.”), with 8 U.S.C.

§ 1228(b)(1), and 8 C.F.R. § 238.1(b)(2)(i) (allowing the government to put

aggravated felons in expedited removal proceedings without a hearing before an

immigration judge). Within the week, the Department of Homeland Security had

issued a final administrative removal order, and ICE agents had sent Almanza-Vigil

back across the border to Mexico. Six years later, border-patrol agents found

Almanza-Vigil in the New Mexico desert. Then, charged with illegal reentry,

Almanza-Vigil moved to dismiss the indictment by collaterally attacking his previous

2
removal order and arguing, for the first time, that he never committed an aggravated

felony.

Now reviewing the district court’s judgment convicting Almanza-Vigil for

illegal reentry, we must return to 2009, when he left state prison, and ask how he

could have avoided removal. To prevail here, Almanza-Vigil must show not only that

his Colorado felony was not an aggravated felony, but that misclassifying it as one

prejudiced him. To show the required prejudice, he must show that the

misclassification rendered the entry of the 2009 removal order fundamentally unfair.

Absent that, his appeal fails. See 8 U.S.C. § 1326(d).

For the reasons detailed below, we conclude that Almanza-Vigil’s Colorado

felony does not fit the INA’s definition of an aggravated felony. But we also

conclude that he failed to demonstrate a reasonable likelihood of avoiding removal

but for the erroneous classification of his conviction. The INA therefore parries a

collateral attack on Almanza-Vigil’s previous removal order. 8 U.S.C. § 1326(d). So,

exercising our jurisdiction to review the district court’s final orders, 28 U.S.C.

§ 1291, we affirm that court’s judgment of conviction.1

1
The INA curbs our jurisdiction to review the removal order itself. Though the
Act grants federal appellate courts exclusive authority to review final orders of
removal, it also carves from that authority our jurisdiction to review “any final order
of removal entered against an alien who is removable by reason of having committed
a criminal offense” covered by the statute, including an aggravated felony. 8 U.S.C.
§ 1252(a)(1), (a)(2)(C). Irrespective of statutory bars on our jurisdiction, however,
we retain the “authority to determine whether the factual conditions for the bar are
present.” Shepherd v. Holder, 678 F.3d 1171, 1180 (10th Cir. 2012). Moreover,
notwithstanding 8 U.S.C. § 1252(a)(2)(C)’s ban on reviewing orders to remove

3
 BACKGROUND

Born in Chihuahua in 1984, Almanza-Vigil is a Mexican citizen. In 1993,

eight-year-old Almanza-Vigil and his family trekked across the Mexico–United

States border, without documents and without government inspection, and settled in

Colorado. Almanza-Vigil never acquired legal immigration status, but he grew up in

this country, learning English, graduating from high school, finding work at a dairy

farm, and eventually fathering a son.

In 2006, when Almanza-Vigil was twenty-one years old, the district attorney

in Fort Morgan, Colorado, charged him with six violations of the state’s controlled-

substances act, all felonies. Counts 1, 2, and 3 of the criminal complaint charge three,

identical crimes: that “[o]n or [a]bout” September 15, 20, and 27 of that year,

Almanza-Vigil “unlawfully, feloniously, and knowingly sold or distributed

METHAMPHETAMINE, a schedule II controlled substance, in violation of section

18-18-405(1),(2)(a)(I)(A), [Colorado Revised Statutes].” Suppl. R. vol. 2 at 3

(bolding removed). Likewise, counts 4, 5, and 6 charge him with possessing

methamphetamine “[o]n or [a]bout” the same dates. Id. vol. 2 at 3–4.

At the time, Colorado Revised Statutes § 18-18-405 provided, in pertinent

part:

“criminal aliens”—or any other statutory (or non-statutory) limit on our
jurisdiction—the INA preserves our jurisdiction to review constitutional and legal
issues. See 8 U.S.C. § 1252(a)(2)(D). So, even within the INA’s (restrictive) judicial-
review scheme, 8 U.S.C. § 1252 leaves us the authority to decide whether Almanza-
Vigil committed an aggravated felony.

4
 (1)(a) Except as authorized by [other provisions of state law], it is
unlawful for any person knowingly to manufacture, dispense, sell,
distribute, possess, or to possess with intent to manufacture, dispense,
sell, or distribute a controlled substance; or induce, attempt to induce, or
conspire with one or more other persons, to manufacture, dispense, sell,
distribute, possess, or possess with intent to manufacture, dispense, sell,
or distribute a controlled substance; or possess one or more chemicals or
supplies or equipment with intent to manufacture a controlled substance.

....

(2)(a) Except as is otherwise provided in subsection (2.3) of this section
for possession offenses not including possession with the intent to
distribute involving one gram or less of any material, compound, mixture,
or preparation that contains any quantity of a schedule I through IV
controlled substance, . . . any person who violates any of the provisions
of subsection (1) of this section:

(I) In the case of a controlled substance listed in schedule I or II of part 2
of this article, commits:

(A) A class 3 felony; except that a person commits a class 4 felony if such
violation is based on the possession of a controlled substance listed in
schedule II unless otherwise provided in paragraph (a) of subsection (3)
of this section[.]

....

(2.3)(a) Any person who commits the offense of possession in violation
of the provisions of subsection (1) of this section by possessing any
material, compound, mixture, or preparation, weighing one gram or less
that contains any quantity of a controlled substance listed in schedules I
through IV of part 2 of this article commits:

(I) A class 6 felony[.]

Colo. Rev. Stat. § 18-18-405 (2006).2

2
Since 2006, the Colorado legislature has revised § 18-18-405 several times.
See, e.g., H.B. 10-1352, 67th Gen. Assemb., 2d Reg. Sess, ch. 259, 2010 Colo. Sess.
Laws 1162, 1164 (striking simple possession from § 18-18-405(1)(a)’s list of
proscriptions).

5
 In August 2007, Almanza-Vigil pleaded guilty to count 1, “selling or

distributing” methamphetamine. In exchange, the state dismissed the remaining five

charges. The state court’s “sentence order” reflects this bargain. Suppl. R. vol. 2 at 5.

The order shows Almanza-Vigil’s “Plea of Guilty” to count 1, “18-18-405(1),

(2)(a)(I)(A) – Controlled subst-Distribute s,” a class 3 felony, and lists counts 2, 3, 4,

5, and 6—two more distribution charges (also class 3 felonies) and three possession

charges (two class 4 felonies and one class 6 felony)—as “Dism by DA.” Suppl. R.

vol. 2 at 5. The court sentenced Almanza-Vigil to serve four years in state prison.

Two years passed. Then, prison officials informed Almanza-Vigil (whose

parole was approaching) that the federal government had issued an immigration hold.

“[Y]ou’re going to be going to Mexico,” he remembers being told. R. vol. 1 at

154:25. And from that point on, he claims, he “never thought” that he would be able

to challenge his removal. R. vol. 1 at 155:1.

In April 2009, the state released Almanza-Vigil to ICE agents, who detained

him pending his removal. The Department of Homeland Security had decided that

Almanza-Vigil’s Colorado conviction met 8 U.S.C. § 1101(a)(43)(B)’s definition of

an “aggravated felony,” making him deportable under 8 U.S.C. § 1227(a)(2)(A)(iii)

and, because he lacked permanent-resident status, subjecting him to expedited

6
removal proceedings under 8 U.S.C. § 1228(b) and 8 C.F.R. § 238.1(b), (d), without

a hearing before an immigration judge.3

The record on appeal contains the two forms that the government claims to

have given Almanza-Vigil during these proceedings: a two-page Notice of Intent

(exhibit 4) and a one-page Certificate of Service (exhibit 5). These forms are, in the

district court’s words, “a mess.” R. vol. 1 at 354 ¶ 10.

Exhibit 4 is titled, “Notice of Intent to Issue a Final Administrative Removal

Order.” Suppl. R. vol. 2 at 6. Below that title, the Notice is addressed to “Oscar

ALAMANZA-VIGIL” (a misspelling repeated on the next page). Id. at 6, 7. The

Notice then sets forth the “Charge”: “You are deportable under . . . 8 U.S.C.

§ 1227(a)(2)(A)(iii), as amended, because you have been convicted of an aggravated

felony . . . .” Suppl. R. vol. 2 at 6. And it explains “Your Rights and

3
In expedited removal proceedings, a noncitizen with an aggravated-felony
conviction is “conclusively presumed to be deportable,” 8 U.S.C. § 1228(c), and
ineligible for discretionary relief from removal, id. § 1228(b)(5). Still, the expedited-
removal statute and its accompanying regulations protect noncitizens’ rights to
procedural due process. See id. § 1228(b)(4). Section 1228(b)(3) requires the
government to wait fourteen days after issuing the final removal order and before
executing it to allow the noncitizen “an opportunity to apply for judicial review” of
the order—unless the noncitizen waives this waiting period. Under § 1228(b)(3), the
government also must give the noncitizen reasonable notice of the charges against
him, as well as an opportunity to rebut them, and allow the noncitizen “the privilege
of being represented (at no expense to the government)” by counsel. Id.
§ 1228(b)(4)(A)–(C). Agency regulations add more specific mandates: A noncitizen
must be served with “Form I-851, Notice of Intent to Issue a Final Administrative
Deportation Order,” which must inform the noncitizen of his rights to representation
and to judicial review, among other rights, and provide him with a list of free legal
services. 8 C.F.R. § 238.1(b)(1)–(2).

7
Responsibilities,” including (1) that “you may contact legal counsel from the list of

available services provided to you” (a list that the government didn’t provide) and

(2) that if you want to exercise your rights to rebut the charge or to seek judicial

review, the government must receive your written response within ten days. Id. But

the Notice lacks a designated space for Almanza-Vigil’s signature. And while the

Notice’s first page claims to be “Form I-851,” the next page identifies itself as “Form

I-831 Continuation Page” and purports to be the third of three pages. Id. at 7. Above

this puzzling footer, the Continuation Page contains a typewritten paragraph alleging,

“You were[] . . . convicted . . . for the offense of, Controlled Substance-Distribute

Sch. 2; to wit: Methamphetamine in violation of C.R.S. 18-18-405(1), (2)(a)(I)(A) for

which the term of imprisonment was 4 years.” Id.

Exhibit 5, the Certificate of Service, begins with an ICE agent’s signed

statement: “I served this Notice of Intent. I have determined that the person served

with this document is the individual named on the other side of the form.” Id. at 8.

(The contents of the “other side” remain a mystery: the district court deduced only

that “the other side” was probably not the Certificate, based on the government’s

introduction of the Notice and the Certificate as separate exhibits.) Beneath two

checked boxes—one admitting “the allegations and charge in this Notice of Intent,”

another waiving “the right to remain in the United States . . . to apply for judicial

review”—the Certificate has three lines: on the first is a hand-drawn “x” and

Almanza-Vigil’s signature; on the second, someone printed “Oscar Almanza”; and on

the third is the date, April 6, 2009. Id.

8
 In the government’s view, Almanza-Vigil knowingly waived his right to

contest his removal by signing the Certificate. So, on April 6 (the same day that he

signed it), the Department of Homeland Security issued a final administrative

removal order declaring (1) that Almanza-Vigil is not a U.S. citizen, (2) that he has

never been lawfully admitted for permanent residence to the United States, and

(3) that he has been convicted of an aggravated felony defined in 8 U.S.C.

§ 1101(a)(43)(B). ICE executed the order a week later, on April 13, and an

immigration official witnessed Almanza-Vigil walk across the border near El Paso,

Texas, and into Mexico.

Six years later, in April 2015, a set of footprints in the New Mexico desert led

border-patrol agents to Almanza-Vigil, who was hiding in a mesquite bush near the

border fence. The agents arrested him, suspecting that he’d entered illegally. After

his processing revealed the 2009 removal order, prosecutors filed a criminal

complaint in the U.S. District Court for the District of New Mexico, alleging that

Almanza-Vigil had reentered the country in violation of an outstanding removal order

that had followed an aggravated-felony conviction. Three months later, a grand jury

returned an indictment charging him with illegal reentry in violation of 8 U.S.C.

§ 1326(a) and (b).

Almanza-Vigil moved to dismiss the indictment by attacking his 2009 removal

order—the government’s proof that he had reentered illegally (a felony under

8 U.S.C. § 1326) rather than merely entered improperly (a misdemeanor under

§ 1325). The 2009 removal order was “improperly issued,” he claimed, because he

9
had never been convicted of an aggravated felony. R. vol. 1 at 54. Had the

government realized this, he argued, he would not have been put in expedited

removal proceedings, and he could have applied for (and likely received)

discretionary relief from removal. But the district court denied the motion and

foreclosed Almanza-Vigil’s collateral attack. Twice, Almanza-Vigil asked the court

to reconsider this ruling, but twice, the court refused.

On December 14, 2015, after denying Almanza-Vigil’s first motion to

reconsider, the court held a bench trial. “[B]ased upon the undisputed testimony” that

he had returned to the United States without permission after being deported, the

court found Almanza-Vigil guilty of violating 8 U.S.C. § 1326(a) and (b). Four

weeks later, after denying his second motion to reconsider, the court entered

judgment and sentenced Almanza-Vigil to 635 days in prison (approximately time

served—he had been in custody since his arrest on April 19, 2015).4 He immediately

appealed.

DISCUSSION

Almanza-Vigil challenges the district court’s refusal to dismiss the illegal-

reentry indictment. On appeal, as in the district court, he disputes the validity of his

2009 removal order by arguing that it was entered without due process. When a

noncitizen attacks the constitutionality of a previous removal proceeding in this way,

he presents a mixed question of law and fact that we review de novo. United States v.

4
After his release, he returned to Mexico.

10
Aguirre-Tello, 353 F.3d 1199, 1204 (10th Cir. 2004). But before addressing the

merits of Almanza-Vigil’s appeal, we must narrow the question. To do so, we weave

together the appeal’s statutory and procedural context.

A. How Can a Noncitizen Prosecuted for Illegal Reentry Collaterally
Attack the Underlying Removal Order?

When the government prosecutes a noncitizen for illegal reentry, it typically

must prove two things: (1) that the noncitizen left the United States with an

outstanding order of removal against him and (2) that afterward, the noncitizen

entered, tried to enter, or was found in the United States. 8 U.S.C. § 1326(a).

When the government offers a previous removal order as evidence of the first

element, the Fifth Amendment protects the noncitizen’s right to challenge that order,

even years after the time for appeal has passed and the order has become final.

United States v. Mendoza-Lopez, 481 U.S. 828, 837–39 (1987); accord United

States v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010). Congress codified this

right in 8 U.S.C. § 1326(d), subject to a noncitizen’s meeting three conditions. See

Adame-Orozco, 607 F.3d at 651. To collaterally attack a previous removal order, the

noncitizen must show (1) that he exhausted all administrative remedies available to

contest the previous removal order, (2) that the previous removal proceedings

deprived him of the opportunity to seek judicial review, and (3) that the previous

order’s entry was fundamentally unfair. 8 U.S.C. § 1326(d).

Here, the district court concluded that, although Almanza-Vigil could satisfy

the first two conditions (administrative exhaustion and denial of judicial review) he

11
could not demonstrate the third condition, that the entry of the 2009 removal order

was fundamentally unfair. That conclusion rested on two, alternate grounds: first, that

the government had correctly classified Almanza-Vigil’s conviction as an aggravated

felony; and second, that the government’s decision to classify his conviction as an

aggravated felony had not prejudiced him. And because a collateral attack can’t

survive the failure to meet any of § 1326(d)’s three conditions, the district court

rejected Almanza-Vigil’s challenge to the 2009 order’s validity.

So the appeal begins with one question: Does Almanza-Vigil’s conviction fit

the INA’s definition of an aggravated felony? Because we answer no, the appeal

presents a second question: Did misclassifying the conviction so prejudice Almanza-

Vigil that the entry of his previous removal order was fundamentally unfair? Because

we again answer no, our inquiry ends there—we can uphold the dismissal of his

collateral attack without reaching § 1326(d)’s other conditions.

B. Is “Selling or Distributing” Methamphetamine an Aggravated
Felony?

The parties dispute whether Almanza-Vigil’s conviction for “selling or

distributing” methamphetamine, see Colo. Rev. Stat. § 18-18-405(a) (2006), qualifies

as an aggravated felony under the INA—specifically, whether it meets the definition

in 8 U.S.C. § 1101(a)(43)(B): “illicit trafficking in a controlled substance (as defined

in [21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.

§ 924(c)]).” We first explain how to compare a state offense to the INA’s definition

12
of an aggravated felony. Then, we apply those principles to resolve the parties’

dispute.

1. The Categorical and Modified Categorical Approaches to
Classifying Offenses

“When the government alleges that a state conviction qualifies as an

‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to

determine whether the state offense is comparable to an offense listed in the INA.”

Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (citing Nijhawan v. Holder, 557 U.S.

29, 33–38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185–87 (2007)). The

categorical approach asks whether the state offense’s definition matches “the

‘generic’ federal definition of a corresponding aggravated felony.” Id. (quoting

Duenas-Alvarez, 549 U.S. at 186). The state offense fits the generic offense only if it

“necessarily” includes the generic federal offense. Id. (quoting Shepard v. United

States, 544 U.S. 13, 24 (2005) (plurality opinion)). We therefore presume that the

state conviction rested on “‘the least of th[e] acts’ criminalized,” then determine

whether the generic federal offense encompasses “even those acts.” Id. at 190–91

(alteration in original) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010)).

“Whether the noncitizen’s actual conduct involved such facts ‘is quite

irrelevant.’” Id. at 190 (quoting United States ex rel. Guarino v. Uhl, 107 F.2d 399,

400 (2d Cir. 1939)). The categorical approach focuses on an offense’s elements—the

“constituent parts” of its legal definition, “the things the ‘prosecution must prove to

sustain a conviction.’” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)

13
(quoting Elements of a Crime, Black’s Law Dictionary (10th ed. 2014)). If the

defendant goes to trial, then the elements are “what the jury must find beyond a

reasonable doubt.” Id. (citing Richardson, 526 U.S. at 817). And if the defendant

pleads guilty, then the elements are what he “necessarily admits.” Id. (citing

McCarthy v. United States, 394 U.S. 456, 466 (1969)). Elements are abstract, in

contrast to “brute facts”—“mere real-world things[] extraneous to the crime’s legal

requirements,” which “need neither be found by a jury nor admitted by a defendant.”

Id. (first quoting Richardson v. United States, 526 U.S. 813, 817 (1999); and then

citing Fact, Black’s Law Dictionary (10th ed. 2014)).

When a state statute defines a single crime with a single—that is, indivisible—

set of elements, the categorical approach is (relatively) “straightforward”: just “line[]

up that crime’s elements alongside those of the generic offense and see[] if they

match.” Id. But this comparison gets more complicated when a state statute is

divisible—that is, when it creates multiple crimes by listing multiple, alternative

elements. Id. at 2249.5

When a statute lists alternative elements, the modified categorical approach

allows us to glimpse “a limited class of documents” from the previous conviction—

the indictment, the jury instructions, the plea agreement or colloquy—so that we can

5
Mathis gives the example of a California law against “‘the lawful or the
unlawful entry’ of a premises with intent to steal.” 136 S. Ct. at 2249. This law
creates “two offenses, one more serious than the other.” Id. But only the more serious
offense, involving unlawful entry, matches generic federal burglary. Id.

14
figure out which alternative “was integral to the defendant’s conviction (that is,

which was necessarily found or admitted).” Id. (citing Shepard, 544 U.S. at 26;

Taylor, 495 U.S. at 602). Once we’ve discerned which crime, comprising which

elements, the noncitizen was convicted of, we can “compare that crime, as the

categorical approach commands, with the relevant generic offense.” Id. But “the

modified categorical approach serves—and serves solely—as a tool to identify the

elements of a crime of conviction when a statute’s disjunctive phrasing renders one

(or more) of them opaque.” Id. at 2253 (citing Descamps v. United States, 570 U.S.

254, 263–64 (2013)). We can’t “repurpose” it to explore whether a conviction, “even

though for a too-broad crime, rested on facts (or otherwise said, involved means) that

also could have satisfied the elements of a generic offense.” Id. at 2254.

So, when we encounter a statute that lists alternatives, we face a threshold

question: does the list enumerate alternative elements, which would allow us to use

the modified categorical approach, or alternative means, which would not?

In Mathis, a state-court decision “definitively answer[ed]” the question

whether Iowa Code § 702.12, which prohibits unlawful entry into “any building,

structure, [or] land, water, or air vehicle,” creates alternative crimes or illustrates

alternative methods of committing the same crime. Id. at 2256. In State v. Duncan,

the Iowa Supreme Court held that a jury need not unanimously agree on the burgled

premises—there, either a boat or a marina—to convict the defendant of burglary;

each location was an “alternative method of committing a single crime.” 312 N.W.2d

519, 523 (Iowa 1981). Applying Duncan’s logic, Mathis concluded that the Iowa

15
statute’s list of locations “[laid] out alternative ways of satisfying a single, locational

element.” Mathis, 136 S. Ct. at 2250, 2256.6

In other cases, the statute itself might resolve the means-or-elements question.

Id. at 2256. If each alternative carries a different penalty, then to comply with

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the jury must unanimously agree

on one of them, meaning that the alternatives must be elements. Mathis, 136 S. Ct. at

2256 (citing, among other state statutes, Colo. Rev. Stat. § 18-4-203 (2015), which

distinguishes second-degree burglary of a dwelling, a class 3 felony, from second-

degree burglary of any other “building or occupied structure,” a class 4 felony).

Other state laws may specify the contents of a charging document: what things

prosecutors must charge (elements) and what things they need not charge (means). Id.

(citing Cal. Penal Code § 952 (West 2008)).

In still other cases, though, state law might fail “to provide clear answers.” Id.

Then, the modified categorical approach permits us to glimpse the record of the

previous conviction to determine whether the listed items are elements of the offense.

Id. at 2256–57 (quoting Rendon v. Holder, 782 F.3d 466, 473–74 (9th Cir. 2015)

(Kozinski, J., dissenting from the denial of rehearing en banc)). If these documents

reference one alternative “to the exclusion of all others,” that indicates the statute

6
Compared to generic burglary, which protects any “building or other
structure,” Iowa burglary reached more places, like vehicles. Mathis, 136 S. Ct. at
2250 (quoting Taylor, 495 U.S. at 598). And because the offenses’ locational
elements didn’t line up, Mathis concluded that the two did not categorically match.
See id. at 2256–57.

16
lists several, alternative elements, each defining a separate crime. Id. at 2257. Then—

and only then—can we use the documents to identify the crime of conviction. Id.

“Conversely,” though, if the indictment and jury instructions reiterate the statutory

list (“building, structure, or vehicle”) or use “a single umbrella term” (like

“premises”), that indicates the statute lists alternative means of fulfilling one

element. Id. And if so, we have “no call to decide which of the statutory alternatives

was at issue in the earlier prosecution.” Id. at 2256.

Next, we consider what this means for Almanza-Vigil.

2. Does Almanza-Vigil’s Colorado Felony Categorically Match
an Aggravated Felony Under the INA?

Almanza-Vigil argues that Colorado Revised Statutes § 18-18-405(1)(a)

(2006) sweeps too broadly to fit the generic federal offense at issue here—the

aggravated felony of “illicit trafficking in a controlled substance (as defined in

[21 U.S.C. § 802]), including a drug trafficking crime (as defined in [18 U.S.C.

§ 924(c)].” 8 U.S.C. § 1101(a)(43)(B).

The generic offense encompasses any offense (state or federal) that “proscribes

conduct punishable as a felony” under the Controlled Substances Act (CSA), Pub. L.

No. 91-513, 84 Stat. 1242 (1970) (codified as amended at 21 U.S.C. §§ 801–904).

Lopez v. Gonzales, 549 U.S. 47, 60 (2006); see also Moncrieffe, 569 U.S. at 188.7 By

7
To explain this conclusion, Moncrieffe noted that 18 U.S.C. § 924(c)(2)
defines a “drug trafficking crime” as “any felony punishable under” three federal
statutes, including the CSA, and that 18 U.S.C. § 3559(a)(5) classifies an offense as a
“felony” if “the maximum term of imprisonment authorized” is more than a year.

17
comparison, the state statute that Almanza-Vigil pleaded guilty to violating, Colorado

Revised Statutes § 18-18-405(1)(a) (2006), makes it unlawful “to manufacture,

dispense, sell, distribute, possess, or to possess with intent to manufacture, dispense,

sell, or distribute a controlled substance” (among other acts). As even the government

concedes, the least of the acts criminalized—simple possession—is not a felony

under the CSA. See 21 U.S.C. § 844(a) (setting a ceiling of a year’s imprisonment for

a defendant’s first possession conviction); accord Lopez, 549 U.S. at 53. So, if the

statute is indivisible, then Almanza-Vigil is correct—it doesn’t match the generic

offense.

But the government contends that the Colorado statute is divisible and that,

under the modified categorical approach, Almanza-Vigil pleaded guilty to a crime the

government terms “distribution of methamphetamine,” which it claims “clearly

constitutes” the generic federal crime of illicit drug trafficking. Appellee’s Answer

Br. at 26. We disagree.

Last year, two Tenth Circuit cases considered the scope of a “controlled

substance offense,” one of two categories of previous convictions that enhance the

sentence of a “career offender” under the federal sentencing guidelines. United

States v. McKibbon, 878 F.3d 967, 971–76 (10th Cir. 2017); United States v.

Madkins, 866 F.3d 1136, 1144–48 (10th Cir. 2017); see also U.S. Sentencing

Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm’n 2018). Like the INA’s

definition of a drug-trafficking offense, the guidelines’ definition of a “controlled

substance offense” encompasses all state or federal offenses (1) that are punishable

18
by more than a year’s imprisonment and (2) that proscribe the “manufacture, import,

export, distribution, or dispensing of a controlled substance,” or the “aiding[,] . . .

abetting, conspiring, [or] attempting to commit such offenses.” U.S.S.G. § 4B1.2(b)

& cmt. n.1. To this definition, Madkins and McKibbon hitched the CSA’s definition

of distribution: “delivery” of the controlled substance. 21 U.S.C. § 802(11); see also

McKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1144.

Both decisions then compared that definition to the defendants’ previous

convictions: Madkins’s convictions for the Kansas crimes of “possession with intent

to sell, deliver, or distribute” cocaine and marijuana, and McKibbon’s conviction for

the Colorado crime at issue here (albeit a newer iteration, which had dropped simple

possession from its list of proscribed acts). Madkins, 866 F.3d at 1145 (quoting

Kan. Stat. Ann. §§ 65-4161(a), 65-4163(a)(3) (2001)); McKibbon, 878 F.3d at 971–

74 (citing Colo. Rev. Stat. § 18-18-405(1)(a) (2014)). The McKibbon court noted that

Colorado’s uniform controlled-substances act defines a “sale” to include “a barter, an

exchange, or a gift, or an offer therefor.” Colo. Rev. Stat. § 18-18-403(1) (emphasis

added); McKibbon, 878 F.3d at 971. Likewise, the Madkins court observed that

Kansas law defines a “sale” to include an “offer to sell.” 866 F.3d at 1145.

Incorporating each state’s definition of a “sale” into its proscription on “selling or

distributing” a controlled substance, both Madkins and McKibbon determined that the

states’ drug laws swept in more conduct—including offers to sell a controlled

substance—than fit within the guidelines’ definition of a “controlled substance

offense.” McKibbon, 878 F.3d at 972; Madkins, 866 F.3d at 1145–46 (citing United

19
States v. Hinkle, 832 F.3d 569, 576–77 (5th Cir. 2017) (concluding that a similar

Texas statute was broader than the guidelines’ definition); United States v. Savage,

542 F.3d 959, 966 (2d Cir. 2008) (concluding that a similar Connecticut statute was

likewise “overly inclusive”)). And because the elements didn’t line up, there was a

categorical mismatch.

That was so, Madkins and McKibbon concluded, even though a “controlled

substance offense” includes an attempt to distribute the controlled substance. See

U.S.S.G. § 4B1.2 cmt. n.1. As Madkins explained, “an attempt to commit a crime

requires the intent to commit the crime and overt acts in furtherance of that intent.”

866 F.3d at 1147 (quoting United States v. Taylor, 413 F.3d 1146, 1155 (10th Cir.

2005)). Yet a person can offer to sell a controlled substance (an overt act) without

intending to complete the sale. Id. Stated otherwise, an offer to sell can be fraudulent,

“such as when one offers to sell the Brooklyn Bridge.” Id. (quoting Savage, 542 F.3d

at 965). Unless we read in limiting language (which is out of bounds during statutory

construction), a state law that proscribes all “offers” to sell a controlled substance

covers both the bona fide and the fraudulent. And because a fraudulent offer lacks

“the intent to sell or distribute” that an attempt requires, a conviction for “selling or

distributing” a controlled substance (in any state that defines “sale” to include all

offers) criminalizes a broader swath of conduct than the guidelines’ definition of a

“controlled substance offense.” Id. at 1148.

Madkins and (four months later) McKibbon thus both concluded that the

guidelines’ definition of a “controlled substance offense” excludes convictions under

20
state statutes that proscribe “offers” to sell a controlled substance. McKibbon,

878 F.3d at 972; Madkins, 866 F.3d at 1145. The least of the acts criminalized under

such a state statute is a fraudulent offer to sell a controlled substance, which does not

constitute a “controlled substance offense” under the guidelines. Cf. Moncrieffe,

569 U.S. at 191 (quoting Johnson, 559 U.S. at 137). So, “the two are not a

categorical match.” Madkins, 866 F.3d at 1147.

In reaching this conclusion, McKibbon addressed but rejected the

government’s contention (which it raises again here) that Colorado Revised Statutes

§ 18-18-405(1)(a) is divisible, “setting forth multiple elements of multiple criminal

offenses, including manufacturing, dispensing, distributing, selling, or offering to sell

a controlled substance.” 878 F.3d at 974. If the government’s argument were correct,

then the court could have used the modified categorical approach to determine the

offense to which McKibbon had pleaded guilty (and then compared that offense to

the guidelines’ definition). Id. But the court deemed the statute indivisible based on

the Colorado Supreme Court’s decision in People v. Abiodun, 111 P.3d 462 (Colo.

2005). McKibbon, 878 F.3d at 974–75. As Mathis suggested it might, the Colorado

court’s decision definitively answered the elements-or-means question—and its

answer was “means.” Id. at 974 (citing Mathis, 136 S. Ct. at 2256).

21
 In Abiodun, the Colorado Supreme Court held that Colorado Revised Statutes

§ 18-18-4058 defines a single offense for double-jeopardy purposes:

Nothing in the specific language of the statute or the history of its
enactment suggests an intent to create a separate offense for each
proscribed act. On the contrary, the scope and structure of the proscriptive
provision, combined with sentencing provisions differentiating
punishments on the basis of the quantum of drugs (rather than the act)
involved, strongly points to the creation of a single crime, the gravamen
of which is preventing the unauthorized delivery of a “particular quantity
of a particular contraband substance.” . . . . Rather than completely
separate offenses, the statute strongly suggests an intent to “criminalize
successive stages of a single undertaking,” . . . “encompass[ing] every act
and activity which could lead to the proliferation of drug traffic.”

111 P.3d at 466–67 (alteration in original) (citations omitted) (first quoting Lopez v.

State, 108 S.W.3d 293, 299 (Tex. Crim. App.2003); then quoting United States v.

Mendoza, 902 F.2d 693, 697 (8th Cir. 1990); and then quoting United States v.

Gomez, 593 F.3d 210, 213 (3d Cir. 1979)). In McKibbon’s view, Abiodun squarely

addressed divisibility by “holding that the state legislature intended to create a single

unitary offense when it enacted the ‘alternatively-phrased’ § 18-18-405(1)(a).”

McKibbon, 878 F.3d at 975 (quoting Mathis, 136 S. Ct. at 2249). Not only that,

McKibbon added, Abiodun interpreted the Colorado statute to dole out the same

punishments regardless of “whether a defendant manufactured or distributed or

offered to sell a controlled substance.” Id. (citing Mathis, 136 S. Ct. at 2256).

8
Abiodun reviewed convictions that occurred sometime between 2001 and
2003, when the drug laws were the same as in 2006 (Almanza-Vigil’s day)—and
when § 18-18-405(1)(a) proscribed simple possession. See People v. Abiodun,
87 P.3d 164, 165 (Colo. App. 2003). The Colorado legislature struck simple
possession only in 2010. See supra note 2.

22
 Yet even if Abiodun’s message on divisibility were uncertain, Mathis’s final

suggestion—“if state law fails to provide clear answers”—allowed the McKibbon

court to “peek” at the record of the previous conviction. Id. at 976 (quoting Mathis,

136 S. Ct. at 2256–57). And there, the court saw that McKibbon had pleaded guilty to

violating Colorado Revised Statutes § 18-18-405(1)(a) by “either selling or

distributing heroin.” Id. So under Mathis, the court concluded, McKibbon’s previous

record indicated that “selling or distributing” a controlled substance were alternative

means of committing a single, indivisible offense. Id. (citing Mathis, 136 S. Ct. at

2248).9

Madkins and McKibbon thus crafted a general rule: if state law criminalizes

fraudulent offers to sell a controlled substance, then a conviction under that state law

is a categorical mismatch for the guidelines’ generic “controlled substance offense.”

Here, we take their logic another step, into the immigration context. Like the generic

“controlled substance offense” under the guidelines, the generic offense of “illicit

trafficking in a controlled substance” under the INA encompasses all state offenses

that are felonies under the CSA. Compare Lopez, 569 U.S. at 60 (defining the scope

of “illicit trafficking in a controlled substance” under 8 U.S.C. § 1101(a)(43)(B)),

9
Madkins also addressed divisibility, but it deemed the Kansas statutes
divisible. 866 F.3d at 1145 (discussing Kan. Stat. Ann. §§ 65-4151(a),
65-4163(a)(3)). That didn’t matter in the end, though, because Madkins had pleaded
guilty to possession with intent to sell cocaine and marijuana. Id. And the court
determined that under Kansas law, these offenses covered possession with the intent
to offer to sell cocaine and marijuana. See id.

23
with McKibbon, 878 F.3d at 972, and Madkins, 866 F.3d at 1144 (defining the scope

of a “controlled substance offense” under U.S.S.G. § 4B1.2(b)). And according to

Madkins and McKibbon, the felony offenses of distribution and attempted

distribution under the CSA exclude fraudulent offers to sell. See 21 U.S.C.

§§ 802(11), 802(8), 841(a)(1) (prohibiting only the actual or attempted delivery of a

controlled substance). So, a state statute that proscribes all offers to sell a controlled

substance, including fraudulent ones, criminalizes more conduct than (and is a

categorical mismatch for) the INA’s definition of “illicit trafficking in a controlled

substance.” See 8 U.S.C. § 1101(a)(43)(B).

As for the state statute at issue here, McKibbon further tells us that Colorado

Revised Statutes § 18-18-405(1)(a) is indivisible—at least to the extent that “selling

or distributing” a controlled substance are alternative means of committing a single

offense. McKibbon, 878 F.3d at 974; see also id. at 976. McKibbon thus specifically

rejected the argument that the government makes here: that we can use the modified

categorical approach to define Almanza-Vigil’s crime of conviction more narrowly,

as “distributing” methamphetamine. See id. at 974–76.

And like in McKibbon, even if we do use the modified categorical approach to

“peek” at the record of Almanza-Vigil’s previous conviction, we see that he was

convicted of “selling or distributing” methamphetamine. Of the six counts in the

complaint, he pleaded guilty to the first:

COUNT 1 - DISTRIBUTION OF A CONTROLLED SUBSTANCE -
SCHEDULE II (F-3)

24
 On or About September 15, 2006, OSCAR ALMANZA-VIGIL
unlawfully, feloniously, and knowingly sold or distributed
METHAMPHETAMINE, a schedule II controlled substance; in violation
of section 18-18-405(1),(2)(a)(I)(A), C.R.S.

Suppl. R. vol. 2 at 3 (bolding removed). And according to Mathis, when an

indictment reiterates the statute’s alternatives (here: “sold or distributed”), it’s “as

clear an indication as any that each alternative is only a possible means of

commission, not an element that the prosecutor must prove to a jury beyond a

reasonable doubt.” 136 S. Ct. at 2257. Nor does it matter that when pressed for space,

the state-court judgment labeled the charge “Controlled subst-Distribute.” Suppl. R.

vol. 2 at 5. The modified categorical approach limits our record inquiry “to the terms

of the charging document, the terms of a plea agreement or transcript of

colloquy . . . , or to some comparable judicial record of this information.” Shepard,

544 U.S. at 26; see also Mathis, 136 S. Ct. at 2249. And here, the charging language

in count one shows that Almanza-Vigil pleaded guilty to “selling or distributing”

methamphetamine. Suppl. R. vol. 2 at 3.

Accordingly, it doesn’t matter whether we apply the categorical approach or

the modified categorical approach. Either way, Almanza-Vigil’s crime of conviction

is “selling or distributing” a controlled substance in violation of Colorado Revised

Statutes § 18-18-405(1)(a). And because that crime comprises fraudulent offers to

sell a controlled substance, it does not categorically match the aggravated felony of

“illicit trafficking in a controlled substance . . . , including a drug trafficking crime.”

8 U.S.C. § 1101(a)(43)(B). Cf. McKibbon, 878 F.3d at 976.

25
 That leaves a final question: Even though the government misclassified

Almanza-Vigil’s Colorado conviction as an aggravated felony, which resulted in

expedited removal proceedings and the denial of any opportunity for discretionary

relief, can he additionally show that the entry of his previous removal order was

“fundamentally unfair”? 8 U.S.C. § 1326(d)(3).

C. Did Misclassifying Almanza-Vigil’s Colorado Conviction Render
the Entry of his 2009 Removal Order Fundamentally Unfair?

Almanza-Vigil argues that the government’s misclassification of his Colorado

conviction as an aggravated felony prejudiced him because, outside expedited

removal proceedings, he could have applied for and received relief from removal,

such as voluntary departure or cancellation of removal.10

In Aguirre-Tello, we required a noncitizen alleging that the entry of a previous

removal order was fundamentally unfair to meet a reasonable-likelihood standard.

353 F.3d at 1209; see also 8 U.S.C. § 1326(d)(3). To demonstrate fundamental

unfairness, the noncitizen must establish a reasonable likelihood that, but for the

10
We agree with Almanza-Vigil that S.E.C. v. Chenery Corp. would bar us
from upholding his removal order on grounds different from those stated in that
order. See 332 U.S. 194, 196 (1947) (“[A] reviewing court, in dealing with a
determination or judgment which an administrative agency alone is authorized to
make, must judge the propriety of such action solely by the grounds invoked by the
agency.”). But 8 U.S.C. § 1326(d)(3) prohibits us from addressing the removal order
itself unless Almanza-Vigil can establish that the order’s entry was fundamentally
unfair. And as Almanza-Vigil’s arguments throughout this case show, the
fundamental-unfairness inquiry hinges on Almanza-Vigil’s chances of receiving
relief from removal.

26
complained-of error, he would have avoided removal. Aguirre-Tello, 353 F.3d at

1208 (quoting United States v. Calderon-Pena, 339 F.3d 320, 324 (5th Cir. 2003)).

But in a footnote, Aguirre-Tello noted “the inherent difficulty in demonstrating

prejudice from the denial of eligibility for discretionary relief.” Id. at 1209 n.8 (citing

Mejia Rodriguez v. Reno, 178 F.3d 1139, 1148 (11th Cir. 1999)). The Aguirre-Tello

court quoted Mejia-Rodriguez, where the Eleventh Circuit warned:

An alien’s actual chances of receiving such discretionary relief
[suspension of deportation]11 are too speculative, and too far beyond the
capability of judicial review, to conclude that the alien has actually
suffered prejudice from being ineligible for suspension of
deportation . . . . Just as a court cannot review the inherently ‘subjective’
judgments made by the executive in deciding whether to commute a life
sentence, this Court cannot predict the subjective and fact-intensive
judgments that the Attorney General would make in deciding whether to
grant extraordinary relief, such as the suspension of deportation . . . . The
alien cannot demonstrate prejudice, much less substantial prejudice,
arising from the ineligibility for such an ‘act of grace’ because no
standards exist for a court to determine whether the executive would have
granted the extraordinary relief anyway.

Id. (quoting Mejia-Rodriguez, 178 F.3d at 1148).

At the threshold, we disagree with the district court that Almanza-Vigil’s odds

of receiving “an ‘act of grace’ in the form of discretionary relief” present an inquiry

“too speculative” for judicial examination. R. vol. 1 at 470 (quoting Aguirre-Tello,

353 F.3d at 1209 n.8). Aguirre-Tello itself did not consider the petitioning

11
Under the current statutory scheme, “suspension of removal” corresponds to
cancellation of removal under 8 U.S.C. § 1229b. See Immigration and Naturalization
Act § 244, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. § 1254 (1994) (repealed).

27
noncitizen’s claim too speculative, despite hinting at the “inherent difficulty” of

success. 353 F.3d at 1209 n.8. Instead, the court explored the likelihood that he could

have received “a § 212(c) waiver12 from deportation.” See id. at 1209–10.

Accordingly, we will, too.

We turn to whether, absent the government’s misclassification of his Colorado

conviction as an aggravated felony, Almanza-Vigil had a reasonable likelihood of

receiving either cancellation of removal or voluntary departure.

1. Cancellation of Removal

The INA gives the Attorney General discretion to cancel the removal of an

otherwise-removable, non-permanent-resident “alien” who:

(A) has been physically present in the United States for a continuous
period of not less than 10 years immediately preceding the date of
[his] application [for cancellation of removal];

(B) has been a person of good moral character during such period;

(C) has not been convicted of an offense under [8 U.S.C.
§§ ]1182(a)(2) [including “any law or regulation of a State . . .
relating to a controlled substance (as defined in section 802 of Title
21)”], 1227(a)(2) [including an aggravated felony or “any law or
regulation of a State . . . relating to a controlled substance”], or

12
Before Congress enacted the Antiterrorism and Effective Death Penalty Act
(AEDPA), section 212(c) of the INA, codified at 8 U.S.C. § 1182(c), gave the
Attorney General broad discretion to waive deportation for resident noncitizens. See
INS v. St. Cyr, 533 U.S. 289, 294–95 (2001). In 1996, AEDPA “reduced” the class of
noncitizens eligible for such discretionary relief by identifying “a broad set of
offenses for which conviction would preclude such relief.” Id. at 297. Later that year,
Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act of
1996, which repealed 8 U.S.C. § 1182(c) and created 8 U.S.C. § 1229b, permitting
“cancellation of removal” for a much narrower class of resident noncitizens. Id.

28
 1227(a)(3) [failure to register and falsification of documents] . . . ;
and

(D) establishes that removal would result in exceptional and extremely
unusual hardship to the alien’s spouse, parent, or child, who is a
citizen of the United States or an alien lawfully admitted for
permanent residence.

8 U.S.C. § 1229b(b)(1).

Almanza-Vigil claims that, “had the relevant officials realized his conviction

was not an aggravated felony,” he would have had a reasonable likelihood of

receiving cancellation of removal. Appellant’s Brief-in-Chief at 37. He submits the

testimony of his immigration-law expert, Mr. Olsi Vrapi, a “Criminal immigration”

law professor at the University of New Mexico School of Law and a practicing

attorney who has represented hundreds of noncitizens in immigration proceedings. R.

vol. 1 at 186:20. At the motion-to-dismiss hearing, Vrapi said that Almanza-Vigil

was “eligible for this form of relief” despite having pleaded guilty to “selling or

distributing” methamphetamine. R. vol. 1 at 206:25–207:1.

We disagree. Though “selling or distributing” methamphetamine is not an

aggravated felony under the INA, it does violate “a[] law or regulation of a State . . .

relating to a controlled substance,” namely, Colorado Revised Statutes

§ 18-18-405(1)(a). 8 U.S.C. §§ 1182(a)(2), 1227(a)(2). Almanza-Vigil’s Colorado

conviction thus qualifies as an offense under both § 1182(a)(2) and § 1227(a)(2),

which would have disqualified him from receiving cancellation of removal under

8 U.S.C. § 1229b(b)(1)(C).

29
 2. Voluntary Departure

Compared to cancellation of removal, voluntary departure is available to a

broader class of noncitizens. The INA excludes only aggravated felons, 8 U.S.C.

§ 1227(a)(2)(A)(iii), those engaged in terrorist activities, id. § 1227(a)(4)(B), and

some noncitizens “previously permitted to so depart,” from this form of relief. See id.

§§ 1229c(a)(1), 1229c(c). Any other noncitizen may seek permission to depart at his

own expense instead of commencing, or before completing, removal proceedings. See

id. § 1229c(a)(1). Alternatively, at the end of removal proceedings, a noncitizen who

meets certain conditions may seek an order from the immigration judge “granting

voluntary departure in lieu of removal.” Id. § 1229c(b)(1). To receive such an order,

the “alien” must:

(A) . . . [have] been physically present in the United States for a period
of at least one year immediately preceding the date the notice to
appear was served . . . ;

(B) . . . [be, and have] been, a person of good moral character for at
least 5 years immediately preceding the alien’s application for
voluntary departure;

(C) . . . not [be] deportable under section 1227(a)(2)(A)(iii)
[aggravated-felony convictions] or section 1227(a)(4) [security-
related grounds, including terrorist activities] . . . ; and

(D) . . . establish[] by clear and convincing evidence that the alien has
the means to depart the United States and intends to do so.

Id.; see also 8 C.F.R. § 1240.26.

Almanza-Vigil’s Colorado conviction was not an aggravated felony, and

nothing in the record suggests that he poses a national-security risk. So, we agree

with Almanza-Vigil that even with his criminal record, he was eligible to receive
30
voluntary departure in 2009, at least before the completion of removal proceedings.13

But we disagree that he was reasonably likely to receive it. See Aguirre-Tello,

353 F.3d at 1209.

In exercising their discretion to grant or deny a voluntary-departure

application, immigration judges balance the applicant’s positive equities, like lengthy

residence in the United States and close ties to family here, against negative factors,

like an unfavorable immigration history or a criminal record, and then decide whether

the applicant is worthy of an exercise of discretion. See Matter of Gamboa, 14 I & N.

Dec. 244, 248 (BIA 1972); accord United States v. Valdez-Novoa, 780 F.3d 906,

917–21 (9th Cir. 2015) (applying Gamboa’s balancing principle in the context of

§ 1326(d)’s fundamental-unfairness prong).

Almanza-Vigil, bolstered by Vrapi’s testimony, asserts that an immigration

judge considering the equities of his case would have found him worthy of voluntary

departure. He had grown up in the United States since age eight; he had learned

English, graduated from high school, and worked a steady job; and he had many

13
Had Almanza-Vigil received voluntary departure either before the end, or at
the end, of the removal proceedings, the immigration judge would have entered an
“alternate order of removal.” 8 C.F.R. § 1240.26(d); see also 8 U.S.C. § 1229c(b)(1).
Neither party addressed how such an order might affect subsequent illegal-reentry
proceedings. But had Almanza-Vigil returned after the entry of such an order, he
would have “departed the United States while an order of exclusion, deportation, or
removal [wa]s outstanding, and thereafter . . . enter[ed] . . . the United States,” thus
violating 8 U.S.C. § 1326(a). (He would not, though, be subject to the twenty-year
maximum prison sentence for those “whose removal was subsequent to a conviction
for commission of an aggravated felony.” 8 U.S.C. § 1326(b)(2).)

31
citizen and lawful-permanent-resident family members, including a son born here.

His “only negative equity” was his conviction for “selling or distributing”

methamphetamine. Appellant’s Brief-in-Chief at 35. And Vrapi told the court that

with the counterweight of his positive factors, Almanza-Vigil “had a reasonable

likelihood of receiving” voluntary departure despite this conviction. R. vol. 1 at

212:17–18. Voluntary departure, Vrapi explained, was “fairly easy” to get and “fairly

typical to be granted,” absent “some egregious circumstance” (like “[p]rior violations

of other voluntary returns,” “disregard of border laws,” or “criminal acts”). Id. vol. 1

at 211:21, 211:25–212:1, 212:4–7. Though he couldn’t give numbers, Vrapi said that

his clients had “gotten voluntary departure, even with felonies.” Id. vol. 1 at 212:12–

13.

In further support, Almanza-Vigil cites cases in which noncitizens with

criminal records worse than his have won this form of relief. In his best example, In

re: Luis Alonzo Gonzales-Figueroa, the Board of Immigration Appeals upheld an

immigration judge’s decision to grant voluntary departure to an applicant with

“numerous arrests,” four assault convictions (the last of which sent him to prison for

six months), and one resisting-arrest conviction. 2006 WL 729784, at *1 (BIA

Feb. 10, 2006). Considering Gonzales-Figueroa’s countervailing positive equities,

like his lengthy residence in the country, his participation in Alcoholics Anonymous,

and the testimony of his mother and sister, both U.S. citizens, that he had quit

drinking and helped his mother pay the bills, the board ruled that the immigration

judge had not abused his discretion. Id. at *1–2.

32
 But as the Ninth Circuit observed in Valdez-Novoa, “a single case that is

arguably on point means only that it is ‘possible’ or ‘conceivable’ that a similarly

situated alien would be afforded voluntary departure.” 780 F.3d at 920. The same

point dampens Vrapi’s helpfulness here. Vrapi could not quantify Almanza-Vigil’s

chances, nor could he describe any case in which an immigration judge had allowed

someone convicted of “selling or distributing” methamphetamine to depart

voluntarily. Vrapi’s conclusory assertions that voluntary-departure relief is “fairly”

likely overall and would have been “reasonably” likely in Almanza-Vigil’s case

cannot substitute for such empirical or anecdotal evidence. (Tellingly, Vrapi was

unfamiliar with the Aguirre-Tello decision.) Our reasoning parallels the analysis in

United States v. Reyes-Alvares, which involved the same expert witness and a similar

fact pattern. No. CR 15-4121 KG, 2016 WL 10720854, at *1, *5 (D.N.M. Feb. 19,

2016). There, the district court found Vrapi’s examples distinguishable from the case

at bar, so it discounted his testimony “that ‘IJs ‘hand[ ][voluntary departures] out like

candy.’” Id. at *6–7 (alterations in original). Even added to decisions like Gonzales-

Figueroa, Vrapi’s testimony here establishes only the possibility that Almanza-Vigil

might have received voluntary departure had his Colorado conviction been properly

classified; it doesn’t establish a reasonable likelihood.

Almanza-Vigil has close ties to this country, including a U.S.-citizen son, but

in 2009, when the government issued his removal order, he had just been released

from prison for “selling or distributing” methamphetamine—a serious crime in the

colloquial sense, if not technically an aggravated felony under the INA. See 8 U.S.C.

33
§ 1101(a)(43)(B). And unlike the applicant in Gonzales-Figueroa, Almanza-Vigil

offered no evidence of rehabilitation. See 2006 WL 729784, at *1–2. As a result, he

can’t meet his burden of showing a “reasonable likelihood that, in deciding who is

deserving of discretionary relief from deportation among the many aliens eligible for

such relief, the Attorney General would grant relief to one so recently convicted of

such a serious . . . crime.” Aguirre-Tello, 353 F.3d at 1209.

We agree with the district court that Almanza-Vigil failed to satisfy the

fundamental-unfairness prong of 8 U.S.C. § 1326(d)(3). And without satisfying that

condition, the INA precludes him from collaterally attacking his 2009 removal order

in the illegal-reentry prosecution. See 8 U.S.C. § 1326(d).

CONCLUSION

For these reasons, we affirm the district court’s judgment.

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