FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50521
Plaintiff-Appellee,
v. D.C. No.
3:10-cr-00407-JLS-1
RICARDO CISNEROS-RESENDIZ,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted
July 15, 2011—Pasadena, California
Filed September 6, 2011
Before: Pamela Ann Rymer, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
16881
16884 UNITED STATES v. CISNEROS-RESENDIZ
COUNSEL
Douglas Keehn, Assistant U.S. Attorney, San Diego, Califor-
nia for appellee United States of America.
Vincent J. Brunkow, Esquire, San Diego, California for appel-
lant Ricardo Cisneros-Resendiz.
OPINION
IKUTA, Circuit Judge:
Ricardo Cisneros-Resendiz (Cisneros) challenges his con-
viction for illegal reentry after removal, in violation of 8
U.S.C. § 1326, on the ground that the removal order on which
the conviction was based was invalid. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
I
Cisneros is a native and citizen of Mexico. He was brought
to the United States by his parents at the age of ten and spent
much of his youth in the San Diego area.
On January 5, 2006, Cisneros attempted to enter the United
States at the San Ysidro port of entry, falsely claiming he was
a U.S. citizen. Because a San Diego County warrant for Cis-
neros’s arrest was outstanding, the Department of Homeland
Security (DHS) turned him over to state officials. Cisneros
was subsequently convicted of possession of methamphet-
amine. After completing his state jail sentence, Cisneros was
returned to DHS custody.
UNITED STATES v. CISNEROS-RESENDIZ 16885
On February 17, 2006, DHS issued a Notice to Appear
(NTA) alleging that Cisneros was inadmissible and subject to
removal because he was an arriving alien who had applied for
admission to the United States by an oral false claim to
United States citizenship and had been convicted of a
drug offense. On the basis of these allegations, the NTA
charged Cisneros with being inadmissible under
8 U.S.C. § 1182(a)(2)(A)(i)(II),1 1182(a)(6)(C)(ii),2 and
1182(a)(7)(A)(i)(I).3 At a removal hearing on February 27,
2006, Cisneros admitted the charges in the NTA, and the
Immigration Judge (IJ) ordered him removed to Mexico. Cis-
neros was removed to Mexico on the same day.
Cisneros’s criminal history establishes that he was found in
the United States at least four times following his February
27, 2006 removal. He was convicted of reckless driving on
July 10, 2007, and was returned to Mexico on September 24,
2007. On July 1, 2008, he was convicted of several violations
of the California Vehicle Code, including driving on a sus-
pended or revoked license, and sentenced to probation; the
next day he was returned to Mexico. On January 16, 2009, he
was convicted of possession of methamphetamine. A little
over a month later, on February 23, 2009, he was again
returned to Mexico. Finally, on September 18, 2009, Cisneros
was arrested by the Carlsbad, California police for possessing
.3 grams of methamphetamine. He pleaded guilty to this
1
“[A]ny alien convicted of . . . (II) a violation of (or a conspiracy or
attempt to violate) any law or regulation of a State, the United States, or
a foreign country relating to a controlled substance . . . is inadmissible.”
§ 1182(a)(2)(A)(i).
2
“Any alien who falsely represents, or has falsely represented, himself
or herself to be a citizen of the United States for any purpose or benefit
under this chapter (including section 1324a of this title) or any other Fed-
eral or State law is inadmissible.” § 1182(a)(6)(C)(ii)(I).
3
“[A]ny immigrant at the time of application for admission—(I) who is
not in possession of a valid unexpired immigrant visa, reentry permit, bor-
der crossing identification card, or other valid entry document required by
this chapter . . . is inadmissible.” § 1182(a)(7)(A)(i).
16886 UNITED STATES v. CISNEROS-RESENDIZ
offense and was sentenced to 150 days in jail and 3 years pro-
bation.
In February 2010, Cisneros was indicted by a federal grand
jury for illegal reentry after removal, in violation of 8 U.S.C.
§ 1326.4 The government based its § 1326 prosecution on Cis-
neros’s February 27, 2006 removal order. Before trial, Cisne-
ros moved to dismiss the § 1326 indictment on the ground
that the removal order was invalid because the removal pro-
ceedings were fundamentally unfair; specifically, Cisneros
argued that the IJ had failed to inform him that he could with-
draw his application for admission into the United States, and
he had been prejudiced as a result. The district court denied
Cisneros’s motion to dismiss the indictment. Cisneros then
entered into a plea agreement, which preserved his right to
appeal the court’s denial.5 After judgment was entered, Cisne-
ros filed this timely appeal.
II
On appeal, Cisneros argues that the February 27, 2006
removal order was invalid, and therefore the district court
erred in denying his motion to dismiss the § 1326 count of the
superseding indictment. We review this claim de novo. United
States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.
2004).
[1] An alien commits the crime of illegal reentry after
removal if the alien “(1) has been denied admission, excluded,
deported, or removed or has departed the United States while
an order of exclusion, deportation, or removal is outstanding,
4
A superseding indictment was filed in April 2010 which added a count
charging Cisneros with falsely claiming U.S. citizenship, in violation of 18
U.S.C. § 911.
5
The court dismissed the § 911 charge pursuant to the plea agreement.
Cisneros therefore pleaded guilty and was sentenced on the illegal reentry
charge alone.
UNITED STATES v. CISNEROS-RESENDIZ 16887
and thereafter (2) enters, attempts to enter, or is at any time
found in, the United States” without the Attorney General’s
prior consent to the alien’s reapplication for admission or
proof that the alien was not required to obtain such advance
consent. 8 U.S.C. § 1326(a)(1)-(2). Thus, a predicate removal
order is a necessary element of a § 1326 prosecution.
[2] An alien has a limited right to make a collateral attack
on the validity of the removal order that is the predicate to the
§ 1326 action. Under § 1326(d), an alien criminal defendant
may “challenge the validity” of such a removal order if the
alien demonstrates that “(1) the alien exhausted any adminis-
trative 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 oppor-
tunity for judicial review; and (3) the entry of the order was
fundamentally unfair.” § 1326(d). The entry of a removal
order is “fundamentally unfair” for purposes of § 1326(d)(3)
only if the removal proceeding violated the alien’s due pro-
cess rights and the alien suffered prejudice as a result. United
States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010).6
If the alien alleges that the IJ’s failure to provide information
about a form of potentially available discretionary relief
caused a due process violation, the alien must show prejudice
by establishing that it was plausible that the IJ would have
granted such relief. See United States v. Barajas-Alvarado,
No. 10-50134, ___ F.3d ___, 2011 WL 3689244, at *9 (9th
Cir. Aug. 24, 2011) (citing United States v. Arce-Hernandez,
163 F.3d 559, 563 (9th Cir. 1998)). This requires the alien to
demonstrate that, “in light of the factors relevant to the form
of relief being sought, and based on the ‘unique circumstances
of [the alien’s] own case,’ it was plausible (not merely con-
ceivable) that the IJ would have exercised his discretion in the
6
The government does not dispute that the other two requirements for
a collateral challenge under § 1326(d), exhaustion of administrative reme-
dies and improper deprivation of the opportunity for judicial review, see
§ 1326(d)(1)-(2), are satisfied here.
16888 UNITED STATES v. CISNEROS-RESENDIZ
alien’s favor.” Id. (alteration in original) (quoting United
States v. Corrales-Beltran, 192 F.3d 1311, 1318 (9th Cir.
1999)).
[3] In this case, Cisneros argues that the IJ’s failure to
advise him of the possibility of withdrawing his application
for admission at the time of the February 27, 2006 hearing
was a violation of his due process rights. Further, he argues,
this violation prejudiced him because absent the error, he
would have asked for permission to withdraw his application
and plausibly would have received such relief. Because deter-
mining whether Cisneros has established a due process viola-
tion would require us to address an issue of first impression
in our circuit,7 we assume for present purposes that Cisneros
has established that his due process rights were violated, and
begin our analysis with the question whether Cisneros can
show prejudice, i.e., whether he has demonstrated that it was
plausible that the IJ would have granted his request to with-
draw his application for admission.
A
In order to evaluate Cisneros’s claim of prejudice, we must
review the framework authorizing IJs to permit aliens to with-
draw their applications for admission. Despite statutory and
regulatory changes, the basic framework has remained consis-
tent over time.
7
We have held that an IJ presiding over a removal hearing has a duty
to inform an alien of his or her “apparent eligibility” for certain kinds of
immigration relief, and that an IJ’s failure to perform this duty constitutes
a due process violation that “can serve as the basis for a collateral attack”
under § 1326(d). United States v. Lopez-Velasquez, 629 F.3d 894, 896-97
(9th Cir. 2010) (en banc). We have never held, however, that withdrawal
of an application for admission qualifies as an immigration “benefit” to
which 8 C.F.R. § 1240.11(a)(2)’s duty to inform applies. Cf. United States
v. Calderon-Segura, 512 F.3d 1104, 1108 (9th Cir. 2008) (assuming but
not deciding that the IJ’s duty to inform applies to withdrawal).
UNITED STATES v. CISNEROS-RESENDIZ 16889
Before the enactment of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 (IIRIRA), both IJs
and immigration officers exercised their discretion to permit
aliens to withdraw their applications for admission based on
case law and internal practices. See Barajas-Alvarado, 2011
WL 3689244, at *9. The BIA’s precedential opinion, In re
Gutierrez, 19 I. & N. Dec. 562 (BIA 1988), provided guid-
ance to IJs in exercising this discretion. Gutierrez involved an
alien who attempted to enter the United States at San Fran-
cisco International Airport by means of a fraudulent docu-
ment. Id. at 563. The IJ determined that the alien was
excludable, but permitted him to withdraw his application for
admission, citing as “positive considerations” the facts that
the applicant was married to a lawful permanent resident who
would become eligible for citizenship in one year, had a
United States citizen child and was expecting a second, had
no arrest or welfare record, and had been gainfully employed
and was supporting his family. Id. at 563-64.
The BIA reversed, holding “that a balancing of the equities
test is not an appropriate method by which to determine
whether an alien merits permission to withdraw an application
for admission.” Id. at 564. Rather, the BIA determined that
“[a]n immigration judge should not allow withdrawal unless
an alien, in addition to demonstrating that he possesses both
the intent and the means to depart immediately from the
United States, establishes that factors directly relating to the
issue of his admissibility indicate that granting withdrawal
would be in the interest of justice (i.e., that justice would be
ill served if an order of exclusion was entered).” Id. at 564-65.
Further, the BIA ruled that once an IJ has determined that an
alien is excludable, permission to withdraw “should ordinarily
only be granted with the concurrence of the Service.” Id. at
565. Applying these principles to the case before it, the BIA
held that “even if we were to disregard the applicant’s
attempted fraudulent entry, we can discern no facts or circum-
stances relevant to the issue of his admissibility which suggest
16890 UNITED STATES v. CISNEROS-RESENDIZ
that justice demands that he be allowed to withdraw his appli-
cation for admission.” Id.
When Congress enacted IIRIRA, it codified withdrawal of
an application for admission as a form of discretionary relief.
See 8 U.S.C. § 1225(a)(4). Section 1225(a)(4) provides that
“[a]n alien applying for admission may, in the discretion of
the Attorney General and at any time, be permitted to with-
draw the application for admission and depart immediately
from the United States.”8 The agency subsequently promul-
gated regulations to implement § 1225(a)(4), see 62 Fed. Reg.
10,312, 10,313 (Mar. 6, 1997), and adopted the standard the
BIA had articulated in Gutierrez to govern an IJ’s discretion
to permit an alien to withdraw an application for admission.
See 8 C.F.R. § 1240.1(d).9
[4] Under § 1240.1(d), an IJ may grant an alien’s request
for withdrawal only if: (1) the alien is an arriving alien;10 (2)
the alien demonstrates that the alien “possesses both the intent
and the means to depart immediately from the United States”;
and (3) the alien “establishes that factors directly relating to
the issue of inadmissibility indicate that the granting of the
withdrawal would be in the interest of justice.” § 1240.1(d).
In addition, “[o]nce the issue of inadmissibility has been
resolved,” an IJ ordinarily should permit withdrawal only if
8
An “alien applying for admission” is defined as any “alien present in
the United States who has not been admitted or who arrives in the United
States (whether or not at a designated port of arrival . . .).” § 1225(a)(1).
9
Immigration officers are guided by a different regulation, 8 C.F.R.
§ 1235.4, as well as the Inspector’s Field Manual. Barajas-Alvarado, 2011
WL 3689244, at *9-10. Neither is applicable here.
10
“Arriving aliens” are a subset of the broader category of the “alien[s]
applying for admission” referenced in § 1225(a)(4); the term applies only
to aliens who are (1) “coming or attempting to come into the United States
at a port-of-entry,” (2) “seeking transit through the United States at a port-
of-entry,” or (3) “interdicted in international or United States waters and
brought into the United States by any means.” 8 C.F.R. § 1001.1(q).
UNITED STATES v. CISNEROS-RESENDIZ 16891
DHS concurs in the alien’s request. Id.11 Because § 1240.1(d)
essentially mirrors the BIA’s ruling in Gutierrez, we interpret
the key criterion, that the alien must establish “that factors
directly relating to the issue of inadmissibility indicate that
the granting of the withdrawal would be in the interest of jus-
tice,” in light of that decision.12
[5] Although Gutierrez did not provide a comprehensive
list of the “factors directly relating to the issue of inadmissi-
bility,” Gutierrez does make clear that equitable consider-
ations such as the length of the alien’s presence in the United
States, the alien’s employment record, the strength of the
alien’s family ties to the United States, the alien’s U.S. citizen
11
In full, § 1240.1(d) provides:
An immigration judge may allow only an arriving alien to with-
draw an application for admission. Once the issue of inadmissi-
bility has been resolved, permission to withdraw an application
for admission should ordinarily be granted only with the concur-
rence of the Service. An immigration judge shall not allow an
alien to withdraw an application for admission unless the alien,
in addition to demonstrating that he or she possesses both the
intent and the means to depart immediately from the United
States, establishes that factors directly relating to the issue of
inadmissibility indicate that the granting of the withdrawal would
be in the interest of justice. During the pendency of an appeal
from the order of removal, permission to withdraw an application
for admission must be obtained from the immigration judge or
the Board.
8 C.F.R. § 1240.1(d).
12
The BIA has consistently relied on Gutierrez in interpreting and
applying 8 C.F.R. § 1240.1(d), as shown in a series of unpublished deci-
sions issued after the promulgation of the regulation in 1997. See, e.g., In
re: Harry Twum-Danso, 2009 WL 888521 (BIA Mar. 16, 2009) (unpub-
lished); In re: Christopher Levon Scholl, 2009 WL 638892 (BIA Feb. 24,
2009) (unpublished); In re: Griselda Canedo, 2008 WL 3919087 (BIA
July 30, 2008) (unpublished); In re: Pablo Reyes Ventura, 2007 WL
1129364 (BIA Feb. 13, 2007); In re: Arnulfo Santiago-Dominguez, 2006
WL 1558744 (BIA Apr. 19, 2006) (unpublished). Gutierrez remains the
only published BIA decision on the topic of withdrawal.
16892 UNITED STATES v. CISNEROS-RESENDIZ
children, and the fact that the alien has a spouse who will be
eligible for citizenship in the near future, are not such factors.
19 I. & N. Dec. at 565. Rather, the relevant factors are those
directly relating to the grounds that Congress has identified
for an alien’s inadmissibility, such as entry into the United
States by means of fraud or conviction of specified crimes.
See generally 8 U.S.C. § 1182(a)(2) (stating that being con-
victed of certain crimes, such as drug offenses, render an alien
inadmissible); § 1182(a)(6)(C)(i) (stating that aliens who seek
admission into the United States “by fraud or willfully mis-
representing a material fact” are inadmissible). Thus, follow-
ing the logic of Gutierrez, an IJ deciding whether to permit
withdrawal would not consider equitable considerations, but
would consider the reasons for the alien’s inadmissibility and
whether those reasons establish that it would be “in the inter-
est of justice” to allow the alien to avoid a formal removal
order. See 62 Fed. Reg. at 10,313 (stating that one of the pur-
poses of allowing withdrawal is to prevent “aliens who may
be inadvertently or unintentionally in violation of the immi-
gration laws or regulations” from being “subject to the harsh
consequences of a formal removal order” (emphasis added)).
B
We now turn to Cisneros’s claim of prejudice, which
requires him to show plausible grounds for receiving relief.
Cisneros argues that it is plausible the IJ would have granted
him permission to withdraw his application for admission
because he meets all the criteria of § 1240.1(d): he was an
arriving alien,13 he could have demonstrated that he possessed
both the intent and means to depart the United States immedi-
ately, and “factors directly relating to the issue of inadmissi-
bility” plausibly indicated “that the granting of the withdrawal
13
Because the February 27, 2006 removal order was based on Cisne-
ros’s January 5, 2006 request to enter the United States at the San Ysidro
port-of-entry, he was an “arriving alien” as defined in the regulations at
the time of his removal hearing. See 8 C.F.R. § 1001.1(q).
UNITED STATES v. CISNEROS-RESENDIZ 16893
would be in the interest of justice.” According to Cisneros,
these factors include: (1) his youth (he was 22 years old at the
time of the 2006 removal hearing); (2) his strong family ties
to the United States (he had parents and siblings living in the
United States); and (3) his desire to avoid an order of removal
due to the “obvious possibility of a family-based immigration
option at some point” in the future. Although he claims the
“possibility of a family-based immigration option,” Cisneros
concedes that he lacked any avenue for family-based immi-
gration at the time of his 2006 removal; rather, he argues that
because he had relatives living in the United States, and
because the immigration laws are in a “near constant state of
flux,” it would have made sense for the IJ to assume that one
day an avenue could open up for Cisneros to return to the
United States.
[6] None of these factors helps Cisneros, however, because
they are not “factors directly relating to the issue of inadmissi-
bility,” and thus they do not establish that permitting Cisneros
to withdraw his application for admission would have been
“in the interest of justice.” § 1240.1(d). Rather, Cisneros’s age
and family ties to the United States are precisely the sort of
equities Gutierrez held did not count as factors directly relat-
ing to the issue of inadmissibility. Gutierrez, 19 I. & N. Dec.
at 565. Similarly, because Cisneros was ineligible for family-
based immigration at the time of his removal, the speculative
possibility that he might have qualified for “a family-based
immigration option at some point” in the future does not
directly relate to the issue of his inadmissibility. See id. at
563-65 (indicating that the alien’s spouse’s eligibility for citi-
zenship in one year was not a factor directly relating to the
issue of the alien’s admissibility).
In arguing against that conclusion, Cisneros cites to an
unpublished BIA decision, In re: Arnulfo Santiago-
Dominguez, which suggested that a “factor directly relating to
the issue of inadmissibility” for purposes of § 1240.1(d)
includes the possibility of obtaining immigration relief
16894 UNITED STATES v. CISNEROS-RESENDIZ
through family ties to the United States. 2006 WL 1558744.
Even if that case were precedential, however, it is not on
point. Unlike Cisneros, the alien in Santiago-Dominguez had
the potential at the time of his removal to “obtain relief, such
as adjustment of status, through his family members.” Id.
Although the immediate possibility of obtaining immigration
relief may directly relate to the issue of an alien’s inadmissi-
bility, cf., e.g., 8 U.S.C. § 1255, the merely speculative possi-
bility of obtaining a visa in the future due to a favorable
change in the immigration laws does not, cf. Lopez-Velasquez,
629 F.3d at 901 (holding that a form of relief for which the
alien could “become eligible only with a change in law and
the passage of eight months” was too speculative to trigger
the IJ’s duty to advise).
[7] Conversely, the factors in the record that do directly
relate to the issue of Cisneros’s inadmissibility, such as his
false claim of citizenship and his conviction for a drug
offense, would have weighed against granting his request for
withdrawal.14 See Gutierrez, 19 I. & N. Dec. at 565; see also
8 U.S.C. § 1182(a)(2)(A)(i)(II), 1182(a)(6)(C)(ii). As Gutier-
rez suggested, when an alien has willfully defied U.S. immi-
gration laws by making a false claim of citizenship, or has
14
Cisneros maintains that we should not consider his false claim of citi-
zenship or his drug offense in determining whether he has shown plausible
grounds for relief because he would not have conceded these charges if the
IJ had informed him of the possibility of withdrawal and then granted him
permission to withdraw at the start of the removal hearing. This argument
misses the point. An IJ is required to determine which “factors directly
relating to the issue of inadmissibility” are present before granting a
request to withdraw, whether the alien has conceded those factors or not.
See § 1240.1(d) (limiting an IJ’s authority to grant permission to withdraw
to situations where “factors directly relating to the issue of inadmissibility
indicate that the granting of the withdrawal would be in the interest of jus-
tice”). Therefore, the timing of Cisneros’s concession is irrelevant; all that
matters is whether the record would have supported the IJ’s finding that
Cisneros had made a false claim of citizenship and had been convicted of
a drug offense. Cisneros does not argue that the record lacks such support.
UNITED STATES v. CISNEROS-RESENDIZ 16895
become inadmissible due to a criminal offense,15 the IJ can
reasonably decide that it is not in the “interest of justice” to
grant the alien relief from a formal removal order.
[8] In sum, we conclude that in light of the “unique cir-
cumstances” of Cisneros’s case, Corrales-Beltran, 192 F.3d at
1318, it is not plausible that the IJ would have granted him
permission to withdraw his application for admission. Cisne-
ros therefore cannot show that he was prejudiced by the IJ’s
alleged error, and cannot show that the entry of the February
27, 2006 removal order was “fundamentally unfair” as
required under § 1326(d)(3).16 Accordingly, his collateral
attack on the removal order fails, and we uphold the district
court’s ruling.
AFFIRMED.
15
Cisneros argues that IJs sometimes grant withdrawal despite an alien’s
criminal convictions, and points to two unpublished BIA decisions in sup-
port. See In re: Laurie Leigh Hill, 2008 WL 5181745 (BIA Nov. 12, 2008)
(unpublished), In re: Pablo Reyes Ventura, 2007 WL 1129364 (BIA Feb.
13, 2007). Because these decisions are not precedential, they are not bind-
ing on IJs or the BIA. Moreover, because neither case gave a reasoned
explanation as to the basis for granting withdrawal, they do not assist Cis-
neros in establishing that it is plausible that the IJ would have granted Cis-
neros relief based on “his unique circumstances,” see Barajas-Alvarado,
2011 WL 3689244, at *10 n.17, which also included a false claim of citi-
zenship and no positive factors.
16
Because we decide the appeal on this basis, we do not reach the par-
ties’ arguments as to whether Cisneros’s due process rights were violated.
See supra p. 16888. Nor do we reach Cisneros’s argument that the IJ could
have granted him relief without first securing DHS’s concurrence.