United States v. Gabriela Cordova-Soto

Case: 14-50053 Document: 00513245181 Page: 1 Date Filed: 10/23/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 14-50053 FILED

October 23, 2015

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee

v.

GABRIELA CORDOVA-SOTO,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

This is a direct criminal appeal in which the appellant is challenging her

conviction for illegal reentry into the United States as a previously removed

alien. See 8 U.S.C. § 1326. Appellant Gabriela Cordova-Soto (“Cordova”)

appeals the district court’s denial of her motion to dismiss the indictment,

arguing that the order of removal, which formed the basis for the instant

offense, was invalid. More specifically, Cordova contends that the Immigration

Judge (“IJ”) failed to expressly find that her waiver of rights and stipulation of

removability was voluntary, knowing, and intelligent as required by 8 C.F.R.

§ 1003.25(b). She also contends that her waiver was involuntary because it

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was induced by incorrect advice given to her by an immigration officer. Finding

no reversible error, we AFFIRM.

I. PROCEDURAL HISTORY

Cordova is a Mexican national who was brought into the United States

as an infant. In 1991, she attained lawful permanent residency at age 13. In

May 2002, she was convicted of misdemeanor theft. The next year she was

convicted of passing a worthless check. In 2005, she pleaded guilty to felony

possession of methamphetamine in Kansas state court. Later that year, agents

of the Immigration and Customs Enforcement Agency (“ICE”) served Cordova

with a Notice to Appear before an IJ. The notice charged her as removable as

(1) an aggravated felon based on the methamphetamine conviction, (2) an alien

convicted of two crimes involving moral turpitude (theft and worthless check

convictions), and (3) an alien convicted of a controlled substance offense (same

methamphetamine conviction). See 8 U.S.C. § 1227(a)(2)(A)(ii), (a)(2)(A)(iii),

and (a)(2)(B)(i).

At the processing center in Chicago, an ICE agent presented Cordova

with a boiler plate form that was entitled Stipulated Request for Issuance of

Final Order of Removal, Waiver of Appearance and Hearing (“Stipulated Form

of Removal”). The agent told Cordova that she had no basis to challenge her

removal and that any attempts to challenge it would only prolong her

detention. The agent informed her that she could call a legal service

organization and gave her a list of phone numbers. Cordova called one legal

service organization and briefly spoke to a person who also told her that she

did not have any basis for seeking cancellation of removal. Cordova, who

speaks and reads English, signed the Stipulated Form of Removal and dated

it November 1, 2005. The form provided that she had been “fully advised of

[her] rights” and “hereby voluntarily, knowingly and intelligently enter[s] into

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the following stipulations.” It also provided that she had been advised of her

right to be represented by counsel and right to a removal hearing. It further

provided that she waived any right to make any application for relief from

removal under the Immigration and Nationality Act. On the final page of the

form, albeit dated six days later on November 7, 2005, ICE Agent James

Gutierrez certified that he had read and explained the document to Cordova.

On November 8, 2005, after finding Cordova removable, the IJ accepted

the Stipulated Form of Removal and ordered her removed to Mexico.

Approximately three weeks later, on November 27, 2005, Cordova reentered

the United States. Several years later, on March 18, 2010, local law

enforcement officers discovered Cordova in Kansas. On September 15, 2010,

she was taken into the custody of the Department of Homeland Security. The

2005 order of removal was reinstated, and Cordova was removed to Mexico on

September 26, 2010. She appealed to the Board of Immigration Appeals

(“BIA”), and her appeal was dismissed. Cordova appealed to the Tenth Circuit,

requesting review of the initial removal order and the reinstated removal

order, and her petition was denied. Cordova-Soto v. Holder, 659 F.3d 1029,

1030 (10th Cir. 2011). The Tenth Circuit held that it did not have jurisdiction

to review the 2005 order because she had not filed her petition for review

within 30 days of her 2005 removal as directed by 8 U.S.C. § 1252(b)(1). Id. at

1032. The court found that it had jurisdiction to review the 2010 removal order

but denied it on the merits. Id. at 1035. The court held that “[b]ecause she

could not have entered the United States legally at [the time of her reentry],

her reentry was illegal and she was therefore subject to reinstatement of her

previous removal order under 8 U.S.C. § 1231(a)(5).” Id. 1

1 Section 1231(a)(5) provides as follows:

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On January 24, 2012, Cordova filed a motion seeking to reopen her 2005

order of removal in the Kansas City Immigration Court, which the IJ denied

on June 6, 2012. The BIA upheld the IJ’s decision on September 17, 2012.

Cordova petitioned for review of the denial of the motion to reopen the 2005

removal order in the Seventh Circuit. Cordova-Soto v. Holder, 732 F.3d 789,

793 (7th Cir. 2013), cert. denied, 135 S. Ct. 85 (2014). Like the Tenth Circuit,

the Seventh Circuit held that it did not have jurisdiction to review the 2005

removal order because the appeal was not filed within the 30-day time limit

contained in 8 U.S.C. § 1252(b)(1). Id. 2 The court explained that although it

did have jurisdiction to consider the merits of the denial of Cordova’s motion

to reopen, it held that 8 U.S.C. § 1231(a)(5) “prohibits collateral review after

the review of the reinstatement is complete.” Id. at 795. The court thus denied

the petition. Id. at 796.

Meanwhile, on September 6, 2012, Border Patrol agents arrested

Cordova for being an alien illegally present in the United States. On October

3, a grand jury in Del Rio, Texas indicted Cordova for the offense of illegal

reentry after removal in violation of 8 U.S.C. § 1326. Cordova filed a motion

to dismiss the indictment, challenging the validity of the 2005 removal order.

She argued, among other things, that the removal order was fundamentally

If the Attorney General finds that an alien has reentered the United

States illegally after having been removed or having departed voluntarily,

under an order of removal, the prior order of removal is reinstated from its

original date and is not subject to being reopened or reviewed, the alien is not

eligible and may not apply for any relief under this chapter, and the alien shall

be removed under the prior order at any time after the reentry.

2 The government moved to dismiss the petition for improper venue or transfer to the Eighth

Circuit. 732 F.3d at 792. The Seventh Circuit recognized that a petition for review should

be filed with the court of appeals for the judicial circuit in which the IJ completed the

proceedings. Id.; 8 U.S.C. § 1252(b)(2). However, the court stated that the statute was not

jurisdictional and concluded that the interest of justice favored retaining the petition in the

Seventh Circuit. Id.

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unfair because the IJ did not conduct a hearing and expressly determine that

her waiver of rights in the Stipulated Form of Removal was voluntary,

knowing, and intelligent as required by 8 C.F.R. § 1003.25(b). The district

court noted that (1) Cordova is fluent in English, (2) the stipulation she signed

is written in plain language that clearly stated the legal effect of signing the

waiver, (3) she does not in fact claim that she unknowingly signed it—only that

the IJ failed to make such a determination, and (4) the record contains a

certification by the ICE agent that he explained to her the rights she was

waiving by signing the document. The district court ruled that “[a]ll of these

facts taken together support a finding that the Defendant intelligently,

knowingly, and voluntarily entered into the Stipulation of removal.” The court

further found that although the IJ did not conduct a hearing or colloquy to

determine whether her waiver was voluntary and knowing, “the acceptance of

the Stipulation supports an implicit finding that the IJ determined the

Stipulation was given as such.” Accordingly, the district court denied the

motion to dismiss the indictment.

Cordova pleaded guilty. In the plea agreement, Cordova reserved the

right to appeal all issues relating to the district court’s ruling on the motion to

dismiss the indictment. Cordova now appeals.

II. ANALYSIS

Cordova contends that because her prior order of removal was invalid,

the district court erred in denying her motion to dismiss the instant indictment

charging her with illegal reentry. We review de novo a district court’s denial

of a motion to dismiss the indictment, including any underlying constitutional

claims. United States v. Villanueva-Diaz, 634 F.3d 844, 848 (5th Cir. 2011).

This court accepts “all factual findings made by the district court in connection

with that ruling unless clearly erroneous.” Id. A factual finding is clearly

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erroneous only if, based on the entirety of the evidence, the reviewing court is

left with the definite and firm conviction that a mistake has been made. United

States v. Valdez, 453 F.3d 252, 262 (5th Cir. 2006).

The Supreme Court has held that an alien who is prosecuted for illegal

reentry may collaterally attack the underlying removal order. United States

v. Mendoza-Lopez, 481 U.S. 828, 839 (1987). More specifically, the Supreme

Court held that due process requires collateral review of deportation orders

that form the basis of a prosecution for illegal reentry, explaining that “where

the defects in an administrative proceeding foreclose judicial review of that

proceeding, an alternative means of obtaining judicial review must be made

available before the administrative order may be used to establish conclusively

an element of a criminal offense.” Id. at 838. After Mendoza-Lopez, this court

held that to collaterally attack a prior removal order in a criminal proceeding,

the alien must demonstrate that:

(1) the removal hearing was fundamentally

unfair; (2) the hearing effectively eliminated the

right of the alien to challenge the hearing by

means of judicial review of the order; and (3) the

procedural deficiencies caused the alien actual

prejudice.

United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002). To show

prejudice, an alien must show that “there was a reasonable likelihood that but

for the errors complained of the defendant would not have been deported.”

United States v. Benitez-Villafuerte, 186 F.3d 651, 658–59 (5th Cir. 1999). This

test was “effectively codified” in 8 U.S.C. § 1326(d). United States v. Lopez-

Vasquez, 227 F.3d 476, 483 n.13 (5th Cir. 2000). Section 1326(d) provides that

an alien may not challenge the validity of a removal order unless the alien

establishes that:

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(1) the alien exhausted any administrative remedies

that may have been available to seek relief against the

order; (2) the deportation proceeding at which the

order was issued improperly deprived the alien of the

opportunity for judicial review; and (3) the entry of the

order was fundamentally unfair.

To successfully challenge a removal order, the alien must prove all three

prongs. “If the alien fails to establish one prong of the three part test, the Court

need not consider the others.” United States v. Mendoza-Mata, 322 F.3d 829,

832 (5th Cir. 2003).

A. Fundamentally Unfair Under § 1326(d)

Cordova contends that her removal proceedings, which formed the basis

for the instant criminal conviction, were fundamentally unfair. § 1326(d)(3).

“Fundamental fairness is a question of procedure.” Lopez-Ortiz, 313 F.3d at

230. Cordova contends that her waiver of the right to a hearing before the IJ

was invalid because it was based on critical misinformation with respect to the

possibility of cancelling her removal. Additionally, she contends that the IJ’s

failure to expressly make a determination that her waiver was knowing and

voluntary in violation of the pertinent regulation rendered her removal

proceedings involuntary.

In Cordova’s motion to dismiss the indictment filed in the district court,

she failed to argue that her waiver was involuntary based on the alleged

misinformation from the ICE agent. The factual section of her motion

explained that the agent advised her that “if she wanted to be removed quickly

she should sign” the waiver form and that “either way, she was going to be

deported.” The factual section of her motion also stated that

“[n]otwithstanding that the law concerning simple drug possession was in flux,

on November 7, 2005, ICE agents persuaded Cordova to sign” the waiver of

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removal hearing. Nonetheless, Cordova never argued that the agent’s advice

rendered her waiver involuntary. Instead, she only challenged the validity of

her waiver based on the IJ’s failure to expressly find that her stipulated

removal request and waiver of rights was voluntary and knowing. Tellingly,

the district court did not address a claim that the waiver was rendered

involuntary by the ICE agent’s advice. 3 Thus, we will first review de novo her

argument that the IJ’s failure to make a finding with respect to the

voluntariness of her waiver rendered the proceedings fundamentally unfair.

We will then review for plain error her argument that the agent’s advice

rendered her waiver involuntary. See Puckett v. United States, 556 U.S. 129,

135 (2009).

1. IJ’s Failure to Make a Finding of Voluntariness

Cordova correctly contends that the IJ failed to expressly find that her

waiver was voluntary, knowing, and intelligent as required by 8 C.F.R. §

1003.25(b). Section 1003.25(b) provides that an IJ “may enter [a removal]

order without a hearing and in the absence of the parties based on a review of

the charging document, the written stipulation, and supporting documents, if

any.” However, “[i]f the alien is unrepresented, the Immigration Judge must

determine that the alien’s waiver is voluntary, knowing, and intelligent.” Id.

Cordova, who was unrepresented, argues that this error rendered her

removal proceedings fundamentally unfair and that she was deprived of an

immigration hearing in violation of due process. This court has not addressed

the precise question of whether an IJ’s failure to expressly make a

determination of the voluntariness of the waiver in violation of 8 C.F.R. §

3 Indeed, the district court stated that although Cordova repeatedly contended that the IJ

failed to make a voluntariness determination, she never claimed that her waiver was actually

unknowing and involuntary.

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1003.25(b) constitutes a due process violation that renders the removal

proceedings fundamentally unfair. 4

Nonetheless, this court’s precedent with respect to determining whether

an alien has received due process during deportation proceedings provides

guidance for the instant analysis. In Benitez-Villafuerte, an alien was

convicted of an aggravated felony and deported following expedited removal

proceedings conducted within the Immigration and Naturalization Service

(“INS”). 186 F.3d at 654. Benitez subsequently reentered the United States

without permission and was charged with illegal reentry after deportation

under § 1326. Id. Like Cordova, Benitez challenged the validity of the

deportation order that formed the basis of the illegal reentry prosecution. Id.

at 656. The district court held that “Benitez’s waiver of rights executed before

INS officers did not constitute an effective waiver of his basic rights to

judicially contest his deportation because his waiver had not been made in

open court before a neutral magistrate who could affirm that the waiver was

knowing and voluntary.” Id.

On appeal, this court explained that the due process clause prohibits the

government “from ‘arbitrarily . . . causing an alien who has entered the country

. . . illegally to be taken into custody and deported without giving him all

opportunity to be heard upon the questions involving his right to be and remain

in the United States.’” Id. (quoting Yamataya v. Fisher, 189 U.S. 86, 101

(1903)). “[D]ue process requires only that an alien be provided notice of the

charges against him, a hearing before an executive or administrative tribunal,

4 See Altamirano-Lopez v. Keisler, 250 F. App’x 658, 659 (5th Cir. 2007) (although petitioners

raised a due process violation based on the IJ’s failure to determine whether their waivers

were voluntary under § 1003.25(b), this court did not reach the argument because it

dismissed the claims for lack of jurisdiction).

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and a fair opportunity to be heard.” Id. at 657. However, due process rights,

including the right to a hearing, can be waived. Id.

In Benitez-Villafuerte, the record demonstrated that an INS agent gave

Benitez notice of the charges against him and that the agent explained to him

that he had a right to a hearing to contest the charges. Id. at 658. Benitez

waived that right. Id. Additionally, Benitez waived his right to a 14-day stay

of execution of the deportation order. Id. This court stated that the record

showed Benitez was provided with “ample constitutional protection.” Id. We

noted that there was no record evidence that Benitez’s waiver was not knowing

and voluntarily. Id. 5

Here, Cordova received notice of the charges and was informed that she

had the right to be represented by an attorney. The agent gave Cordova the

telephone numbers to legal services organizations. She called one of the

numbers and was given the same advice that the agent had provided. She was

also told that she could contest the charges in a hearing. After being informed

of those rights, Cordova signed the stipulation waiving them. This sequence

of events is indistinguishable from the procedural due process afforded in

Benitez, and there we held that that the alien received ample constitutional

protection. 6

5 In Benitez, the alien argued that his waiver of rights was not voluntary. 186 F.3d at 660

n.9. However, because the alien failed to show prejudice, the court did not consider the

argument on appeal. Id.

6 Citing Rule 11 of the Federal Rules of Criminal Procedure, Cordova contends that the IJ’s

failure to make a determination of the voluntariness of her waiver of rights is akin to a

district court’s failure to conduct a plea colloquy prior to accepting a guilty plea. This

contention is without merit. “Removal hearings are civil proceedings, not criminal; therefore,

procedural protections accorded an alien in a removal proceeding are less stringent than

those available to a criminal defendant.” Lopez-Ortiz, 313 F.3d at 230.

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Moreover, the district court found that the record evidence supports an

implicit finding that Cordova’s waiver was knowing and voluntary. We have

construed an administrative record as showing that an IJ made an implicit

finding of good moral character, which was a prerequisite for the grant of

voluntary departure. Rodriguez-Gutierrez v. INS, 59 F.3d 504, 508 (5th Cir.

1995). Thus, we now look to see whether the district court clearly erred in

finding that the record supports an implicit finding that the IJ determined the

waiver was knowing and voluntary.

The district court began by observing that Cordova did not claim that the

waiver was actually unknowing and involuntary. The court stated that

Cordova had lived in this country since she was an infant and spoke English

fluently. The court found that the waiver form she signed was “written in

plain, non-legalese language that clearly stated the legal effect of the

instrument.” Additionally, the court noted that the record demonstrated that

an immigration officer explained to her the provisions in the form and what

legal rights she was waiving. The district court stated that all of these facts

support a finding that Cordova intelligently, knowingly, and voluntarily signed

the waiver form. The court further found that the IJ’s acceptance of the waiver

“supports an implicit finding that the IJ determined” the waiver was knowing

and voluntary. Under these circumstances, Cordova has not shown that the

district court’s findings are clearly erroneous or that the court abused its

discretion in not conducting an evidentiary hearing. See United States v.

Gutierrez, 343 F.3d 415, 421 (5th Cir. 2003). Our decision rests upon the

particular facts as presented in this appeal. Of course, the better procedure is

for an ICE agent to contemporaneously certify his explanation of rights and

the alien’s waiver, as well as for an IJ to follow the regulation, which directs

him to make the finding regarding voluntariness. § 1003.25(b). Nevertheless,

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the “failure of an agency to follow its own regulations is not, however, a per se

denial of due process unless the regulation is required by the constitution or a

statute.” Arzanipour v. INS, 866 F.2d 743, 746 (5th Cir. 1989). As discussed

above, this court’s opinion in Benitez supports our conclusion that due process

does not require a separate finding by an IJ that the pro se alien’s waiver is

knowing and voluntary. 7 We reject Cordova’s claim that the IJ’s failure to

make an express determination of voluntariness constituted a due process

violation and conclude that such failure did not render her proceedings

fundamentally unfair.

2. Advice from the ICE Agent

Cordova also contends that the ICE agent misinformed her with respect

to her eligibility for relief from removal and that the misinformation induced

her to sign the waiver. As previously mentioned, because Cordova did not raise

this argument before the district court, we review it for plain error. See United

States v. Chavez–Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). To succeed on

plain error review, an appellant must show (1) a forfeited error, (2) that is clear

or obvious, and (3) that affects her substantial rights. See Puckett v. United

States, 556 U.S. 129, 135 (2009). If an appellant makes such a showing, we

may exercise our discretion “to remedy the error . . . only if the error seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id.

(alteration in original) (internal quotation marks and citation omitted). 8

7 In contrast, the Ninth Circuit has held that an IJ could not have found that the alien’s

waiver was voluntary and knowing based only on the signed stipulated form of removal.

United States v. Gomez, 757 F.3d 885, 898 (9th Cir. 2014). The court found that it constituted

an invalid waiver of the right to appeal and that it was a violation of 8 C.F.R. § 1003.25(b).

8 The government argues that Cordova’s plea agreement waived this claim. The plea

agreement waived any appeal except for “issues relating to the district court’s ruling on

Defendant’s Motion to Dismiss Indictment.” Because this issue is related to the court’s ruling

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Cordova contends that the ICE agent incorrectly advised her that her

prior drug conviction was an aggravated felony, which rendered her ineligible

for relief from removal, and that the misinformation induced her to sign the

waiver. Having an aggravated felony makes an alien ineligible for cancellation

of removal, 8 U.S.C. § 1229b(a)(3), and Cordova was charged with having an

aggravated felony, the methamphetamine conviction. The agent’s advice

regarding the availability of relief was correct with respect to the applicable

BIA precedent at the time. In re Ismael Yanez-Garcia, 23 I & N Dec. 390, 398

(BIA 2002). However, a few months after Cordova’s removal proceedings, the

Seventh Circuit and the Supreme Court determined that an offense such as

Cordova’s drug conviction does not qualify as an aggravated felony. Gonzales-

Gomez v. Achim, 441 F.3d 532, 533 (7th Cir. 2006); Lopez v. Gonzales, 549 U.S.

47, 60 (2006).

Cordova contends that the misinformation about the possibility of

obtaining relief rendered her waiver unknowing and involuntary. Relying on

Mendoza-Lopez, Cordova asserts that the invalid waiver rendered her removal

proceedings fundamentally unfair. However, in Mendoza-Lopez, the Supreme

Court accepted the government’s invitation to assume (and not decide) that the

“respondents’ rights to due process were violated by the failure of the

Immigration Judge to explain adequately their right to suspension of

deportation or their right to appeal.” 481 U.S. at 839–40. Thus, Cordova’s

reliance on Mendoza-Lopez is misplaced.

Our precedent precludes Cordova from demonstrating plain error. We

have held that relief that is “available within the broad discretion of the

on the motion to dismiss the indictment, we reject the government’s argument that this claim

is waived by the plea agreement.

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Attorney General is not a right protected by due process.” Lopez-Ortiz, 313 F.3d

at 231. More specifically, we held that because an alien’s eligibility for

discretionary relief from removal is not a liberty or property interest deserving

of due process protection, an IJ’s failure to explain the eligibility for such relief

“does not rise to the level of fundamental unfairness.” Id. It is undisputed that

the cancellation of removal at issue in the instant case constitutes

discretionary relief. Accordingly, it follows that the ICE agent’s failure to

explain to Cordova that there was a possibility that she could become eligible

for discretionary relief does not demonstrate fundamental unfairness.

Cordova recognizes our precedent and attempts to distinguish her case.

She asserts that Lopez-Ortiz does not control her case because she did not

receive a hearing, and it was undisputed that Lopez-Ortiz was afforded a

hearing and a fair opportunity to be heard. 313 F.3d at 230–31. Cordova

argues that the misinformation regarding her eligibility to avoid removal

resulted in the deprivation of her right to a removal hearing, a right that Lopez-

Ortiz emphasized is guaranteed by principles of due process. Thus, she

contends that her case is not governed by Lopez-Ortiz’s holding on fundamental

fairness. 9

We are not persuaded that Lopez-Ortiz does not control. Although the

right to a hearing is guaranteed by due process, as previously explained, such

a right can be waived. A majority of circuits agree with our holding in Lopez-

Ortiz that there is no constitutional right to be informed of eligibility for—or

to be considered for—discretionary relief. United States v. Soto-Mateo, 799

F.3d 117, 123 (1st Cir. 2015); United States v. Santiago-Ochoa, 447 F.3d 1015,

9 Alternatively, Cordova seeks to preserve the argument that the holding in Lopez-Ortiz is

incorrect and should be overturned by this court en banc or by the Supreme Court.

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1020 (7th Cir. 2006); United States v. Torres, 383 F.3d 92, 104–06 (3rd Cir.

2004); United States v. Aguirre-Tello, 353 F.3d 1199, 1204–05 (10th Cir. 2004)

(en banc); Smith v. Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002); Oguejiofor v.

Attorney General of U.S., 277 F.3d 1305, 1309 (11th Cir. 2002); Escudero-

Corona v. INS, 244 F.3d 608, 615 (8th Cir. 2001); Ashki v. INS, 233 F.3d 913,

921 (6th Cir. 2000). But see United States v. Copeland, 376 F.3d 61, 70–73 (2d

Cir. 2004) (opining that a “failure to advise a potential deportee of a right to

seek Section 212(c) relief can, if prejudicial, be fundamentally unfair”); United

States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000) (explaining that the IJ’s

failure to inform the alien of eligibility for relief from removal violated due

process).

Moreover, in the above-cited First and Seventh Circuit cases, the aliens

waived their right to a hearing and did not appear before an IJ. Soto-Mateo,

799 F.3d at 119; Santiago-Ochoa, 447 F.3d at 1019. Although the aliens had

waived their right to a hearing, those two circuits held that the aliens had no

constitutional right to be informed of their eligibility for discretionary relief.

Those two cases are indistinguishable from Cordova’s case. Agreeing with our

sister circuits’ reasoning, Cordova is precluded from showing that any error

was clear or obvious.

Additionally, Cordova has not shown that the ICE agent’s advice affected

her substantial rights. In other words, she has failed to show that the agent’s

advice prejudiced her. If Cordova had gone before the IJ, there is no reason to

believe that the IJ would have given her different advice with respect to her

eligibility for cancellation of removal. As she points out, the alien in Lopez-

Ortiz was afforded a hearing before an IJ. 313 F.3d at 227. However, in Lopez-

Ortiz, once the IJ found the alien removable, the alien declined to remain in

detention and did not appeal the ruling. Id. Cordova has failed to show that

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she would have changed her mind about her willingness to remain detained

had the same advice been given to her by an IJ instead of the agent. Cf. Soto-

Mateo, 799 F.3d at 123–24 (explaining that the “appellant’s unsolicited request

to speed up the removal process is some indication that he had no stomach for

deportation proceedings (during which he was likely to have been detained)”).

Cordova has failed to show prejudice and thus cannot show her substantial

rights were affected. At least in the context of plain error, Cordova has not

carried her burden of showing that the agent’s advice rendered her proceedings

fundamentally unfair.

B. Judicial Review and Exhaustion Under § 1326

Because Cordova failed to prove that her immigration proceedings were

fundamentally unfair, we are not required to consider the other prongs of the

test. Mendoza-Mata, 322 F.3d at 832. We briefly address the two remaining

prongs of the test.

Cordova argues that she was improperly deprived of the opportunity for

judicial review because her stipulation waiving review was invalid. As

discussed above, we rejected her argument that the waiver was invalid, and

thus, this argument falls under its own weight.

Similarly, Cordova contends that she is excused from exhausting her

administrative remedies because the waiver was invalid. This argument

likewise falls under its own weight. Cordova also argues that by filing the

motion to reopen the proceedings in immigration court, she exhausted her

administrative remedies. It is undisputed that she filed the motion to reopen

years beyond the 90-day deadline. This court has held that filing an untimely

motion to reopen removal proceedings more than one year after the expiration

of the limitation period does not exhaust an alien’s administrative remedies.

16

Case: 14-50053 Document: 00513245181 Page: 17 Date Filed: 10/23/2015

No. 14-50053

Panova-Bohannan v. Gonzales, 157 F. App’x 706, 707 (5th Cir. 2005). Thus,

we conclude that she did not properly exhaust her administrative remedies.

III. CONCLUSION

For the above reasons, the judgment of the district court is AFFIRMED.

17