United States v. Xochitl Cisneros-Rodriguez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-10645

Plaintiff-Appellee,

D.C. No.

v. 5:11-cr-00744-DLJ-1

XOCHITL CISNEROS-RODRIGUEZ,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the Northern District of California

D. Lowell Jensen, Senior District Judge, Presiding

Argued and Submitted

March 12, 2015—San Francisco, California

Filed December 23, 2015

Before: William A. Fletcher and Morgan Christen, Circuit

Judges and Roslyn O. Silver,* Senior District Judge.

Opinion by Judge W. Fletcher;

Dissent by Judge Silver

*

The Honorable Roslyn O. Silver, Senior District Judge for the U.S.

District Court for the District of Arizona, sitting by designation.

2 UNITED STATES V. CISNEROS-RODRIGUEZ

SUMMARY**

Criminal Law

Reversing a criminal judgment, the panel remanded with

instructions to dismiss an indictment and vacate the

defendant’s conviction for illegal reentry.

The panel held that if an Immigration and Customs

Enforcement agent erroneously advises an uncounseled alien

in an administrative removal proceeding that an attorney will

not be able to provide assistance, any waiver of the right to

counsel based on that advice is invalid. The panel held that

an ICE agent therefore obtained an invalid waiver of the

defendant’s right to counsel, in violation of due process,

when he advised the defendant that an attorney would not

have been able to help her when she was facially eligible for

a U-visa, a form of hardship relief available to a person

convicted of an aggravated felony.

The panel further held that the defendant was prejudiced

by the due process violation because it was plausible that she

would have obtained a U-visa had she applied for one,

notwithstanding the fact that she had already been placed in

administrative removal proceedings.

Dissenting, District Judge Silver wrote that the district

court made credibility findings, and that deference to the

district court’s determination that the defendant was not

credible is required; that the law governing administrative

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. CISNEROS-RODRIGUEZ 3

removal proceedings would have prevented the defendant

from staying, vacating, or converting the proceedings; and

that the defendant has not carried the burden to establish she

plausibly would have been granted a U-visa.

COUNSEL

Varell Laphalle Fuller (argued), Assistant Federal Public

Defender, Federal Public Defender’s Office, San Jose,

California, for Defendant-Appellant.

Barbara Valliere, Chief, Appellate Division, Anne M. Voigts

(argued), Assistant United States Attorney, Office of the

United States Attorney, San Francisco, California, for

Plaintiff-Appellee.

OPINION

W. FLETCHER, Circuit Judge:

Xochitl Cisneros-Rodriguez (“Cisneros”), an

undocumented alien, was convicted in 2009 of violating

California narcotics laws and was subsequently placed in

administrative removal proceedings. She was told by the

Immigration and Customs Enforcement (“ICE”) agent who

conducted the proceeding that, because she had been

convicted of an aggravated felony, an attorney could not help

her. She was ordered removed in 2010. When Cisneros

returned to the United States without permission in 2011, she

was criminally charged with illegal reentry. She moved in

the district court to dismiss the indictment on the ground that

her 2010 removal order was fundamentally unfair because her

4 UNITED STATES V. CISNEROS-RODRIGUEZ

due process rights had been violated. The district court

denied the motion and Cisneros was convicted of illegal

reentry.

We hold that the ICE agent who conducted Cisneros’s

administrative removal proceeding violated her due process

rights by telling her that an attorney would not have been able

to help her when she was facially eligible for a U-visa, a form

of hardship relief available to a person convicted of an

aggravated felony. We further hold that Cisneros was

prejudiced by the due process violation because it was

plausible that Cisneros would have obtained a U-visa had she

applied for one in 2010, notwithstanding the fact that she had

already been placed in administrative removal proceedings.

We therefore reverse and remand with instructions to dismiss

the indictment and vacate the conviction.

I. Background

A. Factual Background

Xochitl Cisneros-Rodriguez is a 32-year-old Mexican

national who was brought to the United States as a child and

has lived here, undocumented, for most of her life. She is

married and has two sons. Her husband and sons are all

United States citizens.

As a young adult, Cisneros had several encounters with

the criminal justice system. She has been convicted of a

number of California state misdemeanors. She has also been

convicted of felony and misdemeanor fraud.

In 2006, Cisneros’s car was stolen by a woman named

Monalisa Rodriguez. Cisneros reported the theft, and

UNITED STATES V. CISNEROS-RODRIGUEZ 5

Rodriguez was convicted of larceny and served time in

prison. One night in October 2008, after Rodriguez had been

released from prison, she came to Cisneros’s home with a

knife. She called Cisneros a “snitch” and claimed she would

hurt Cisneros’s family if Cisneros did not “pay her back” by

helping her sell methamphetamine. Over the next three

months, until January 2009, Cisneros helped Rodriguez sell

methamphetamine in and around San Jose, California.

Rodriguez repeatedly threatened Cisneros during this period,

hitting her on three separate occasions and telling her that if

she did not cooperate, Rodriguez would hurt members of her

family.

In January 2009, Cisneros and Rodriguez were arrested

and charged with possession of methamphetamine for sale.

The two women were both incarcerated at the Elmwood

Correctional Facility in Santa Clara County. While

incarcerated, Rodriguez repeatedly threatened Cisneros with

violence, both to extort money and to dissuade her from

testifying against Rodriguez. Approximately a week after the

arrest, Rodriguez instructed Cisneros to call her mother and

tell her to wire $300 to Rodriguez’s prison commissary

account. If Cisneros did not do so, Rodriguez said, Cisneros

would get “beat up.” When Cisneros’s mother did not send

the money, Rodriguez took Cisneros to a bathroom in the

prison and assaulted her. Cisneros’s mother then sent the

money. Rodriguez then demanded that she send an additional

$300.

In February, the jail staff moved Cisneros into another

dormitory in the jail, and later moved her into protective

custody. Rodriguez continued to harass Cisneros, sending her

threatening notes through other inmates. One note instructed

Cisneros to “keep saying the dope was yours in court.”

6 UNITED STATES V. CISNEROS-RODRIGUEZ

Another instructed her to tell her mother to send additional

money, adding, “Or do I need some one [sic] to go see your

brother?” The harassment continued into the fall. In

September, jail staff observed inmates “striking [Cisneros] in

the head multiple times with both fists.” A report from that

incident states that Cisneros suffered “multiple contusion[s]

[to the] back of [her] head.” When shown a photograph of

Rodriguez by an investigator, Cisneros said, unprompted,

“Oh my god, she scares me.” She said that Rodriguez made

her “go through hell.”

Around May 2009, as a result of reports by Cisneros and

her mother, the Santa Clara County Sheriff’s Office referred

the case to the District Attorney. In December 2009,

Cisneros testified at a preliminary hearing on extortion and

other criminal charges brought against Rodriguez. The other

witnesses at the hearing were Cisneros’s mother and an

investigating officer. At the close of the hearing, the judge

found probable cause to issue an information charging

Rodriguez with one felony count of extortion, one felony

count of dissuading a witness by use of force, and one count

of misdemeanor battery. Cisneros was listed as the victim of

all three crimes. In February 2010, Rodriguez entered a plea

of nolo contendere to the charges and was sentenced to a year

in prison, in addition to any sentence imposed on the

methamphetamine charges.

Cisneros ultimately pled guilty to two counts of

possessing a controlled substance for sale in violation of

California Health and Safety Code § 11378, arising out of the

January 2009 arrest and a prior arrest in November 2008. She

was sentenced to one year of incarceration for each count.

UNITED STATES V. CISNEROS-RODRIGUEZ 7

B. Immigration Proceedings

On January 20, 2009, the day after she and Rodriguez

were arrested, Cisneros was referred to ICE. She was

interviewed at the Elmwood Correctional Facility by ICE

Agent Steven Contreras. Contreras recorded on a form that

Cisneros had been born in Mexico; that she had entered the

United States without inspection; and that she was married.

In October 2009, after Cisneros had pled guilty to violating

California narcotics laws, ICE Agent Jose Linares reopened

her file in order to prepare for removal proceedings. He

recommended that ICE place Cisneros into administrative

removal proceedings. Administrative removal proceedings

are conducted by ICE agents rather than Immigration Judges.

On May 20, 2010, Cisneros was transferred to an ICE

facility, where she was placed in an administrative removal

proceeding conducted by Agent Linares. Part of what

occurred on May 20 is disputed. Specifically, the parties

dispute what Linares told Cisneros about her right to hire an

attorney and whether he told her that an attorney would not

help her. But the following facts are undisputed. Linares

served Cisneros with an arrest warrant and a Notice of Intent

to Issue a Final Administrative Removal Order. Cisneros

signed the notice, admitting the charge of removability and

waiving her right to contest it. She then signed a form

admitting to having entered the United States unlawfully in

1994 and waiving her right to an attorney. Linares testified

that the entire proceedings likely took somewhere between

ten and fifteen minutes. Cisneros testified that the

proceedings took about ten minutes.

Cisneros was removed to Mexico on the following day

pursuant to a final administrative order of removal.

8 UNITED STATES V. CISNEROS-RODRIGUEZ

C. District Court Proceedings

Cisneros returned to the United States without permission

sometime in 2011. She was arrested in October 2011 and

criminally charged with illegal reentry in violation of

8 U.S.C. § 1326. In December 2011, represented by counsel,

Cisneros filed an application with U.S. Citizenship and

Immigration Services (“USCIS”) for a U-visa, a form of

hardship relief available to victims of crimes who have

suffered mental or physical abuse and are helpful to law

enforcement officials in prosecuting or investigating the

crime. See Victims of Trafficking and Violence Protection

Act of 2000, Pub. L. No. 106-386, § 1513, 114 Stat. 1464,

1533. As part of her application, Cisneros was required to

obtain certification from a law enforcement officer that she

had assisted in prosecuting a qualifying crime. A detective

from the Santa Clara County Sheriff’s Office certified that

Cisneros had assisted in prosecuting Rodriguez for extortion.

In district court, Cisneros moved to dismiss the

indictment on the ground that her due process rights had been

violated in the administrative removal proceeding on May 20,

2010. She argued that her waivers of her rights to appeal and

to counsel had not been “knowing and voluntary” because

Agent Linares had not followed ICE procedures and had

affirmatively misadvised her about her right to counsel and

about the help an attorney could have provided. The district

judge noted that he generally resolved motions to dismiss an

indictment in a § 1326 case “on the basis of affidavits,” but

that in this circumstance he would hold an evidentiary

hearing. In the hearing that followed, Cisneros and Linares

testified about the circumstances of Cisneros’s removal.

UNITED STATES V. CISNEROS-RODRIGUEZ 9

Cisneros testified that on May 20 Agent Linares had

instructed her to sign forms without indicating to her what

they were. According to Cisneros, when Linares handed her

the notice on which she admitted her removability, he had

folded over the first page which contained the charge itself,

and he had pre-checked the boxes admitting the charge and

waiving her right to contest it. She testified that Linares did

not translate the charges or allegations into Spanish, and that

he did not tell her she had the right to rebut or contest the

allegations or to appeal his decision. She also testified that,

had he told her these things, she would have contested her

removal. She testified that Linares had told her “that if I

wanted to leave in the plane that was about to leave that I

would have to sign this [notice].” She described Linares’s

tone as “Just harsh. Quick. Rude.”

Cisneros testified that Agent Linares had affirmatively

misadvised her about whether she could speak to an attorney,

and about whether an attorney would help her. ICE is

required by regulation to provide aliens in removal

proceedings with a list of free legal services. See 8 C.F.R.

§ 238.1(b)(2)(iv). She testified that she was “certain” that

Linares had not provided her with such a list. Cisneros

further testified that Linares did not tell her that she had a

right to hire an attorney and told her that because she “had big

charges” she “could not see a judge.” In her affidavit filed in

the district court, Cisneros testified that Linares told her that

“a lawyer would not help me, so I did not ask for an

attorney.”

Cisneros testified on direct examination that she had told

Agent Linares during the May 20 interview that she “had an

extortion case in which I had been a victim.” On cross

examination, however, the government sought clarification

10 UNITED STATES V. CISNEROS-RODRIGUEZ

because Cisneros’s written declaration seemed to indicate that

she had not told Linares about her extortion case. Cisneros

clarified that she had mentioned her extortion case to

someone other than Linares:

Q: So going back to your declaration, it states

that you explained to an officer, and the way

the declaration is written, it appears to be

someone other than Agent Linares. You

explained that you had an extortion case.

A: Okay. That question that you asked . . . ,

when I was looking at the immigration people

that were present, I remember that he

interviewed me in January, but it was — well,

it was another person who came when I was

already under protection. It wasn’t the same

person.

Cisneros testified further that she had mentioned her extortion

case to someone other than Contreras.

Q: So it was not either of the two gentleman

[sic] you saw [in court] on Thursday [Agent

Linares or Agent Contreras]?

A. The first one was — I don’t remember, his

name is like Contreras. All right. He went to

see me when I was already in the dorms, but

it wasn’t him I said to — well, that I speak

about the fact that I had a problem with

extortion.

Q: Okay.

UNITED STATES V. CISNEROS-RODRIGUEZ 11

Agent Linares testified that he had no recollection of what

happened on May 20. He conceded that he had no memory

of Cisneros and no memory of her removal proceeding.

Linares was asked, “Do you recognize her?” He answered,

“No.” Linares was then asked, “Do you have any personal

memory of her?” He again answered, “No.” Linares was

finally asked, “[Y]ou have no personal memory of these

proceedings . . . ?” He answered, “No, no.” Linares said that

it was “difficult for [him] to remember each particular case”

because he “process[es] so many.”

Agent Linares testified as to what he “would ordinarily

have done” in conducting an administrative removal

proceeding. He testified that his ordinary practice is to read

the allegations and charge to the alien; that he ordinarily

explains everything on the notice to the alien, including that

the alien has a right to an attorney; and that he believed,

based on his ordinary practice, that he would have provided

Cisneros with a list of free legal service providers. Linares

further testified, again based on what he described as his

ordinary practice, that because Cisneros spoke Spanish, he

would have conducted the removal proceedings in Spanish.

On cross-examination, Linares admitted that, although he had

testified to what he described as his “ordinary practice,”

Cisneros’s administrative removal proceeding had been only

the “second or third” such proceeding he had ever conducted.

Linares also admitted that when he conducted Cisneros’s

administrative removal proceeding, he had recently been

disciplined and demoted to the position in which he

conducted administrative removal hearings.

The district judge issued a written order denying

Cisneros’s motion to dismiss the indictment. The judge

identified the key question as whether Cisneros’s due process

12 UNITED STATES V. CISNEROS-RODRIGUEZ

rights had been violated during her administrative removal

proceedings, a question as to which he wrote that “the

testimony is in conflict.” The judge wrote that “[a]s Linares

testified that it is his habit to provide all aliens he processes

with a list of attorneys, the Court finds it unlikely that none

of the aliens being processed at this time were so provided.”

However, at the same time, the judge “acknowledge[d] that

evidence of disciplinary action taken against Linares by ICE

was introduced as impeachment during cross-examination.”

The judge wrote that “Cisneros Rodriguez’[s] testimony

about her desire to have counsel was inconsistent at best.”

But the district court made no adverse credibility finding as

to either Cisneros or Linares.

With respect to whether Cisneros told Linares about her

extortion case and the possibility of a U-visa, the district

judge wrote, “The Court finds that there is no credible

evidence in the record that defendant told Linares that she

wanted to see a lawyer or an immigration judge because she

thought she had the basis for an application for a U-Visa, or

even that she had been a victim of extortion.” He wrote, a

few pages later, “[T]here is nothing at all in the record to

suggest that in their meeting Cisneros Rodriguez told Linares

about the extortion case, or her desire to file for a U Visa.”

The judge explained the basis for these statements, pointing

out that Cisneros herself had testified on cross examination,

when the government sought clarification of her testimony,

that she had told neither Linares nor Contreras of her

extortion case or any wish to apply for a U-visa.

The district judge found that “[Cisneros] and Linares had

a discussion about counsel.” But the important question, he

explained, was “whether in these discussions Linares

provided [Cisneros] with information which was inaccurate

UNITED STATES V. CISNEROS-RODRIGUEZ 13

or misleading and which therefore interfered with her right to

counsel.” With respect to this question, he concluded that

“based on the information available to Linares about Cisneros

Rodriguez’[s] criminal record, assuming arguendo, Linares

did tell Cisneros Rodriguez that a lawyer could not help her,

the Court finds that, as a factual matter, Linares did not

mislead [Cisneros].” That is, the district court reasoned that

even “assuming arguendo” that Agent Linares told Cisneros

that an attorney would be of no use, as Cisneros testified,

there was no due process violation because Linares’s advice

was correct.

Based on his conclusion that there had been no due

process violation, the district judge denied Cisneros’s motion

to dismiss the indictment. After a bench trial, Cisneros was

convicted of violating 8 U.S.C. § 1326, and was sentenced to

30 months in prison.

Cisneros appealed the denial of her motion to dismiss the

indictment. After she was convicted and while her appeal

was pending, her application for a U-visa was denied.

II. Standard of Review

We review the district court’s denial of a motion to

dismiss an indictment brought pursuant to 8 U.S.C. § 1326(d)

de novo. United States v. Reyes-Bonilla, 671 F.3d 1036, 1042

(9th Cir. 2012). We review the district court’s findings of

fact for clear error. Id.

III. Discussion

“To convict an alien criminal defendant of illegal reentry

under 8 U.S.C. § 1326, the government must prove that the

14 UNITED STATES V. CISNEROS-RODRIGUEZ

alien left the United States under order of exclusion,

deportation, or removal, and then illegally reentered.” United

States v. Barajas-Alvarado, 655 F.3d 1077, 1079 (9th Cir.

2011) (internal footnote omitted). An alien charged with

illegal reentry under § 1326 “has a Fifth Amendment right to

collaterally attack [her] removal order because the removal

order serves as a predicate element of [her] conviction.”

United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th

Cir. 2004); see also United States v. Mendoza-Lopez,

481 U.S. 828, 837–38 (1987). That right is codified at

8 U.S.C. § 1326(d).

To mount a collateral attack under § 1326(d),

a defendant must, within constitutional

limitations, demonstrate (1) that [she]

exhausted all administrative remedies

available to [her] to appeal [her] removal

order, (2) that the underlying removal

proceedings at which the order was issued

improperly deprived [her] of the opportunity

for judicial review, and (3) that the entry of

the order was fundamentally unfair.

Ubaldo-Figueroa, 364 F.3d at 1048; see 8 U.S.C. § 1326(d).

The parties agree that the third question, whether the entry

of Cisneros’s removal order was “fundamentally unfair,” is

dispositive here. See United States v. Gomez, 757 F.3d 885,

892 (9th Cir. 2014) (noting that “[a] defendant can establish

the first two prongs of § 1326(d) by showing that he was

denied judicial review of his removal proceeding in violation

of due process”); Ubaldo-Figueroa, 364 F.3d at 1049–50 (to

similar effect). An underlying order is “fundamentally

UNITED STATES V. CISNEROS-RODRIGUEZ 15

unfair” if (1) a defendant’s due process rights were violated

by defects in her underlying deportation proceeding, and

(2) she suffered prejudice as a result of the defects. Ubaldo-

Figueroa, 364 F.3d at 1048. If Cisneros’s final order of

removal was entered in violation of her due process rights,

and if she suffered prejudice as a result, she is deemed to

have “exhausted all administrative remedies available to

[her]” and to have been “deprived . . . of the opportunity for

judicial review.” See id. at 1048. For the following reasons,

we hold that the entry of the order was fundamentally unfair.

A. Due Process Violation

The district judge wrote that he was willing to assume that

Cisneros testified truthfully when she said that Agent Linares

advised her that an attorney could not help her. Cisneros

argues that Linares’s advice violated her due process rights,

on the ground that he thereby improperly obtained an invalid

waiver of her right to counsel. We agree.

“Although there is no Sixth Amendment right to counsel

in an immigration hearing, Congress has recognized it among

the rights stemming from the Fifth Amendment guarantee of

due process that adhere to individuals that are the subject of

removal proceedings.” Tawadrus v. Ashcroft, 364 F.3d 1099,

1103 (9th Cir. 2004). This right extends to administrative

removal proceedings. Indeed, ICE is required by statute to

inform aliens placed in administrative proceedings of their

right to counsel. See 8 U.S.C. § 1228(b)(4)(B) (“[T]he alien

shall have the privilege of being represented (at no expense

to the government) by such counsel, authorized to practice in

such proceedings, as the alien shall choose.”); 8 C.F.R.

§ 238.1(b)(2)(i) (“[The Notice of Intent] shall advise that the

16 UNITED STATES V. CISNEROS-RODRIGUEZ

alien: has the privilege of being represented, at no expense to

the government, by counsel of the alien’s choosing . . . .”).

A waiver of counsel must be “knowing and voluntary.”

See United States v. Ramos, 623 F.3d 672, 682 (9th Cir.

2010). Improperly obtaining such a waiver constitutes a due

process violation. Id.; see also Reyes-Bonilla, 671 F.3d at

1045–46. “The government bears the burden of proving valid

waiver in a collateral attack of the underlying removal

proceedings.” Ramos, 623 F.3d at 680. We “indulge every

reasonable presumption against waiver” and do not “presume

acquiescence in the loss of fundamental rights . . . , especially

where an uncounseled individual purportedly waived” her

right to counsel. Gomez, 757 F.3d at 894 (internal citations

and quotation marks omitted).

The Record of Sworn Statement form that Cisneros

signed on May 20 stated that she had “the right to consult

with an attorney.” The second question on the form asks,

“Are you willing to waive these rights and talk with me?”

“Sí” (“yes”) is written on the form in answer to that question.

But Cisneros testified that, before she gave this answer,

Linares had dissuaded her from hiring an attorney.

Specifically, she testified that Linares told her that an

attorney “would not help [her].” She testified further that,

had Linares not dissuaded her from exercising her right to

counsel, she would have hired an attorney.

A waiver of fundamental rights, we have repeatedly held,

“must be considered and intelligent.” Gomez, 757 F.3d at

893 (internal quotation marks omitted); see also Reyes-

Bonilla, 671 F.3d at 1043; Ramos, 623 F.3d at 680. It is

difficult to comprehend how an unrepresented alien could

execute a “considered and intelligent” waiver of her right to

UNITED STATES V. CISNEROS-RODRIGUEZ 17

counsel if she has been informed by an ICE agent, just prior

to executing the waiver, that the exercise of that right would

be futile.

The district judge did not make a factual finding that

Agent Linares had told Cisneros that an attorney could not

help her. Instead, he simply assumed that Linares had done

so. The judge nonetheless held that there had been no due

process violation because, he wrote, “as a factual matter,

Linares did not mislead [Cisneros].” In the district judge’s

view, that is, Linares’s statement that an attorney could not

help her was accurate. However, as we explain below,

Linares’s advice was not accurate, and had the effect of

misleading Cisneros. We hold that if an ICE agent

erroneously advises an uncounseled alien in an administrative

removal proceeding that an attorney will not be able to

provide assistance, any waiver of the right to counsel based

on that advice is invalid because it is not “considered and

intelligent.”

Because the district judge was mistaken when he

concluded that Agent Linares’s advice was correct, a critical

question becomes whether, in fact, Linares advised Cisneros

that an attorney could not help her. The district judge

assumed that Linares had so advised Cisneros but he made no

factual finding to that effect. We would ordinarily remand to

the district court to allow the district judge who heard the live

testimony to do factfinding. In this case, however, we think

it appropriate to decide the factual issue ourselves.

The district judge who decided this case has retired. If we

were to remand to the district court for factfinding, the district

judge assigned the case on remand would be in no better

position than we are to decide the factual question. That

18 UNITED STATES V. CISNEROS-RODRIGUEZ

judge would read the transcript, as we can, and would not be

able, any more than we are able, to judge the credibility of

Cisneros based on personal observation. It is possible, of

course, that the district judge assigned the case on remand

would elect to rehear the testimony taken by the first judge.

But given that Cisneros has now been removed and is

currently in Mexico, the likelihood that the new judge would

conduct a hearing at which the key witnesses, including

Cisneros, would testify is sufficiently remote that we are

unwilling to remand based on an assumption that the new

judge would do so.

Cisneros testified that Agent Linares told her that an

attorney “would not help [her].” Linares could not directly

contradict Cisneros because, as he testified, he had no

recollection of her or her proceeding. He testified about his

ordinary practice, and testified that his practice was to explain

to aliens in such proceedings that they have the right to

counsel. But Linares’s testimony was suspect. He admitted

that Cisneros’s removal was only the “second or third”

administrative removal proceeding he had ever conducted.

Further, on cross-examination he conceded that he was

conducting administrative removal proceedings in San Jose

as a result of having been demoted from his previous position

as ICE Chief of Detention in San Francisco. He had been

demoted because, contrary to ICE regulations, he had kept in

a safe in his office between 260 and 300 bags of aliens’

personal possessions, and because he had made false

accusations against, and derogatory and discriminatory

statements about, a fellow ICE employee. As a result of the

false accusations and the statements, ICE had been obliged to

pay $50,000 to the affected employee. Linares’s termination

had been proposed during the disciplinary process, but in the

end he was only demoted and transferred.

UNITED STATES V. CISNEROS-RODRIGUEZ 19

Cisneros testified consistently that she had wanted an

attorney. She stated that she was “certain” that she had not

been provided with a list of attorneys. And she testified

without ambiguity or hesitation that Linares had advised her

that an attorney could not help her. While she was halting

and uncertain regarding whether and when she told the ICE

agents that she had been the victim of extortion, she was

consistent in her statements that she had intended to retain an

attorney until Linares told her that an attorney could not help.

Our dissenting colleague concludes that the district judge

made an implicit credibility finding, and found that Cisneros

testified falsely on the key question in the case. She writes,

“[R]eading the opinion as a whole, the district court found

Cisneros incredible regarding what Linares told her about

counsel.” Our colleague bases her conclusion on two

statements by the district judge. First, she points out that the

judge wrote that there was “no credible evidence in the record

that [Cisneros] told Linares . . . that she had been a victim of

extortion.” We agree with this statement by the district

judge, but it does not amount to an explicit, or even an

implicit, credibility finding. As the district judge recognized

in explaining the statement, Cisneros herself testified that she

had not told Linares (or Contreras, for that matter) that she

had been a victim of extortion. Second, our dissenting

colleague points out that the judge found it “unlikely that

none of the aliens being processed at this time were . . .

provided [with lists of counsel].” We are willing to agree

with this statement by the district judge, too, but it is not, any

more than the first statement, an adverse credibility finding

“regarding what Linares told [Cisneros].” The judge referred

to the likelihood that none of the aliens was provided with

counsel lists; the court found that “unlikely.” Even if that had

been the question before the court, the most the judge found

20 UNITED STATES V. CISNEROS-RODRIGUEZ

was it was “unlikely” that Linares never provided a counsel

list to any alien. But that was not a question before the court.

The question was whether a particular alien — Cisneros —

had been provided with such a list, and whether Linares had

told her that an attorney could not help her.

Based on our independent review of the record, we

conclude that Agent Linares told Cisneros that an attorney

would not help her and thereby persuaded Cisneros to waive

her right to obtain an attorney. We therefore hold that

Linares obtained an invalid waiver of Cisneros’s right to

counsel, in violation of her due process rights.

B. Prejudice

That Cisneros’s Fifth Amendment due process rights were

violated does not end the inquiry. In order to show that her

administrative removal proceeding was “fundamentally

unfair,” she must show that she was prejudiced by the

violation. See Ubaldo-Figueroa, 364 F.3d at 1048. Cisneros

contends that she was prejudiced by the due process violation

because, had she obtained counsel, it is plausible that she

would have applied for and obtained a U-visa, a temporary

visa available to certain crime victims. See 8 U.S.C.

§ 1101(a)(15)(U). The government concedes that Cisneros

was facially eligible for a U-visa in 2010. But it argues that

Cisneros nonetheless could not have been prejudiced by a due

process violation. First, the government argues that Cisneros

was statutorily barred from applying for any form of relief,

including a U-visa, because she had been put in

administrative removal proceedings. Second, the government

argues that, even if Cisneros was not barred by statute, it is

not plausible that she would have obtained a U-visa had she

applied for one in 2010. We disagree with both arguments.

UNITED STATES V. CISNEROS-RODRIGUEZ 21

1. Statutory Bar

The general rule is that a defendant who has been

convicted of an aggravated felony “cannot show that [s]he

was prejudiced by defects in [her] underlying [removal]

proceedings . . . because noncitizens convicted of aggravated

felonies are . . . ineligible for almost all forms of

discretionary relief.” United States v. Alvarado-Pineda,

774 F.3d 1198, 1201 (9th Cir. 2014) (internal citations

omitted). Cisneros, however, argues that she falls within an

exception to the rule. Cisneros argues that she was eligible

for a U-visa, a form of relief available to victims of certain

qualifying crimes who have suffered mental or physical abuse

and assist in the prosecution or investigation of the crime.

See id. at 1201–02; see also Victims of Trafficking and

Violence Protection Act of 2000, Pub. L. No. 106-386,

§ 1513, 114 Stat. 1464, 1533. Conviction for an aggravated

felony does not necessarily disqualify an applicant from

obtaining a U-visa. An applicant for a U-visa may apply to

waive grounds that would ordinarily bar her admission to the

United States, including certain criminal convictions.

8 U.S.C. § 1182(d)(14).

An applicant for a U-visa must demonstrate that (1) she

has suffered “substantial physical or mental abuse” in

connection with a qualifying crime; (2) she possesses

information concerning the crime; (3) she “has been helpful,

is being helpful, or is likely to be helpful” to an official who

is investigating or prosecuting the crime; and (4) the

qualifying crime violated federal or state law. See 8 U.S.C.

§ 1101(a)(15)(U)(i). A U-visa applicant must obtain a

certification from a law enforcement official in order to

qualify for the visa. 8 C.F.R. § 214.14(c)(2)(i). It is

undisputed that Cisneros met these criteria. She was the

22 UNITED STATES V. CISNEROS-RODRIGUEZ

victim of extortion, a qualifying crime; she had suffered

abuse in connection with the crime; and, as the certification

she received from the Santa Clara County Sheriff’s Office

attests, she had rendered substantial assistance in the

prosecution of the crime’s perpetrator, Rodriguez. The

government nonetheless argues that, as a statutory matter,

Cisneros was not eligible to obtain a U-visa, and therefore

could not have been prejudiced by any due process violations.

Under 8 U.S.C. § 1228, the government may place an

undocumented alien convicted of an aggravated felony either

into removal proceedings before an Immigration Judge or into

administrative removal proceedings before an ICE agent. See

8 U.S.C. § 1228(b)(1). The governing regulations explicitly

state that an ICE agent shall place an undocumented alien in

administrative removal proceedings, rather than removal

proceedings before an Immigration Judge, only if he is

“satisfied that there is sufficient evidence” that the alien is

eligible to be placed in these proceedings. 8 C.F.R.

§ 238.1(b)(1). The regulations further permit an ICE agent to

transfer an undocumented alien to removal proceedings

before an Immigration Judge if the agent “finds that the alien

is not amenable to removal” by administrative removal

proceedings. Id. § 238.1(d)(2)(iii). Agent Linares testified

before the district court, consistent with these regulations,

that he had the authority to determine, subject to his

supervisors’ approval, whether Cisneros would be placed and

kept in administrative removal proceedings or transferred to

removal proceedings before an Immigration Judge.

The government argues that, once Agent Linares decided

to place Cisneros in administrative proceedings rather than

proceedings before an Immigration Judge, her right to apply

for a U-visa was irrevocably extinguished. The government

UNITED STATES V. CISNEROS-RODRIGUEZ 23

relies on 8 U.S.C. § 1228(b)(5), which provides that an

undocumented alien placed in administrative removal

proceedings will not “be eligible for any relief from removal

that the Attorney General may grant in the Attorney

General’s discretion.” 8 U.S.C. § 1228(b)(5). The fatal

weakness of the government’s argument is that an ICE agent

can take an undocumented alien already put in administrative

removal proceedings out of those proceedings and put her

into removal proceedings before an Immigration Judge.

Indeed, the regulations explicitly provide that authority, and

Agent Linares conceded in his testimony in the district court

that he could have exercised it. See 8 C.F.R.

§ 238.1(d)(2)(iii). Therefore, while an undocumented alien

placed into administrative removal proceedings may be

barred from applying for discretionary relief during those

proceedings, the bar is contingent on the agent’s decision to

place and keep her in those proceedings.

Our prior opinions in United States v. Calderon-Segura,

512 F.3d 1104 (9th Cir. 2008), and United States v. Garcia-

Martinez, 228 F.3d 956 (9th Cir. 2000), are not to the

contrary. In those cases, we noted that undocumented aliens

convicted of aggravated felonies could not have been

prejudiced by due process violations because under

§ 1228(b)(5) they were “statutorily ineligible for any

discretionary relief.” Calderon-Segura, 512 F.3d at 1108; see

also Garcia-Martinez, 228 F.3d at 964. But neither defendant

identified a form of relief, like the U-visa, that he plausibly

could have obtained had he been placed or transferred into

proceedings before an Immigration Judge. By contrast, in

United States v. Reyes-Bonilla, we engaged in an extensive

analysis of whether it was plausible that the defendant would

have obtained deferral of removal under the Convention

Against Torture, one of the few other forms of relief available

24 UNITED STATES V. CISNEROS-RODRIGUEZ

to an undocumented alien convicted of an aggravated felony.

See 671 F.3d at 1050–52. We did not treat the fact that the

defendant had been placed into administrative proceedings as

a bar to all relief from removal, notwithstanding the text of

§ 1228(b)(5). We instead asked the same question we ask

today: whether the defendant had identified a form of relief

it was plausible he would have obtained absent the due

process violation. In many cases, such as in Calderon-Segura

and Garcia-Martinez, the answer will be “no.” But the

reason for that answer is not that the defendant has been

placed into administrative removal proceedings.

We therefore reject the government’s argument that

§ 1228(b)(5) operates as an absolute bar to a undocumented

alien placed in administrative removal proceedings. We hold,

instead, that an undocumented alien attacking an

administrative removal order may argue that a due process

violation that occurred during her removal proceedings was

prejudicial if (a) she identifies a form of relief for which she

was eligible to apply, notwithstanding her aggravated felony

conviction, and (b) she establishes that it was “plausible” that,

but for the due process violation, she would have been

permitted to apply for, and would have obtained, such relief.

Such a situation is rare, but § 1228(b)(5) does not foreclose

the possibility of relief.

2. Plausibility

To succeed in demonstrating that her 2010 removal order

was fundamentally unfair, Cisneros must show that she was

prejudiced by the due process violations in the underlying

removal proceedings. To do so, Cisneros “does not have to

show that [she] actually would have been granted relief.”

Ubaldo-Figueroa, 364 F.3d at 1050. “Instead, [she] must

UNITED STATES V. CISNEROS-RODRIGUEZ 25

only show that [she] had a ‘plausible’ ground for relief from

deportation.” Id. (quoting United States v. Arrieta, 224 F.3d

1076, 1079 (9th Cir. 2000)). “[E]stablishing ‘plausibility’

requires more than establishing a mere ‘possibility.’”

Barajas-Alvarado, 655 F.3d at 1089. But Cisneros “need not

prove that relief was probable.” United States v. Raya-Vaca,

771 F.3d 1195, 1207 (9th Cir. 2014) (emphasis added). That

is, Cisneros needs to show that relief was more than

“possible,” but she need not show that it was “probable.”

Here, Cisneros must show that, but for the due process

violation, it is both “plausible” that she would have been

permitted to apply for a U-visa in 2010 and “plausible” that

she would have obtained one had she applied. We conclude

that she has made both showings.

First, we have little trouble concluding it is plausible that,

had Agent Linares not told Cisneros that a lawyer would not

help her, she would have been able to apply for a U-visa. The

government does not dispute that Cisneros would have been

able to apply for a U-visa had she not been placed into

administrative proceedings. And Linares conceded that, had

he known Cisneros was eligible for a U-visa, he would have

so informed his supervisors. We have no doubt, as the

district court concluded, that Linares did not know that

Cisneros was facially eligible for a U-visa. We also have no

doubt that a competent lawyer would have discovered that

she was eligible for one, would have informed ICE, and

would thereby have prevented Cisneros’s immediate removal

from the United States. Indeed, a formal Department of

Homeland Security (“DHS”) policy memorandum states that

it is DHS’s policy to stay the proceedings and removal of an

alien who is facially eligible for a U-visa, even after he or she

has been issued a final order of removal. See Memorandum

26 UNITED STATES V. CISNEROS-RODRIGUEZ

from Peter S. Vincent, Principal Legal Advisor, U.S.

Immigration & Customs Enforcement to the Office of the

Principal Legal Advisor (Sept. 25, 2009), available at

http://1.usa.gov/1GqVkYK. Had Cisneros been granted a U-

visa subsequent to the issuance of the removal order, the

removal order would have been canceled. See 8 C.F.R.

§ 214.14(c)(5)(i).

Second, although this is a closer question, we conclude

that it is plausible that Cisneros would have obtained a U-visa

had she applied for one in 2010. According to data compiled

by DHS, USCIS ultimately grants over 70 percent of U-visa

applications. See Number of I-918 Petitions for U

Nonimmigrant Status (Victims of Certain Criminal Activities

and Family Members) by Fiscal Year, Quarter, and Case

Status 2009–2015, U.S. Citizenship & Immigration Serv.,

available at http://1.usa.gov/18LyQG3. Though “statistics

alone cannot establish the plausibility of relief,” Raya-Vaca,

771 F.3d at 1209, the data provides a reasonable baseline

against which to assess the plausibility of relief in Cisneros’s

individual case.

Measured against that baseline, we find it plausible that

Cisneros would have obtained a U-visa in 2010. It is true that

Cisneros had a substantial criminal record. Although the

record is not entirely clear, it appears she was convicted of a

variety of state misdemeanors and felonies. But until the fall

of 2008, when she became involved with Rodriguez, Cisneros

had never been involved in any drug-related crime and had

never been sentenced to more than nine months in county jail.

Further, there were significant reasons why Cisneros might

have warranted a favorable exercise of discretion. She had

lived most of her life in the United States; she was married to

a U.S. citizen; and she was raising two U.S. citizen children.

UNITED STATES V. CISNEROS-RODRIGUEZ 27

Cisneros had also been a critical witness in the

prosecution of Rodriguez for extortion. The government

argues to us that Rodriguez’s crime was relatively minor, and

that Cisneros’s role in assisting the Santa Clara County

Sheriff’s Office was not substantial. To some extent, the

government is making a counterfactual argument, for

Cisneros was both the victim of, and the primary witness

against, Rodriguez. Further, we see nothing in the text or

history of the Victims of Trafficking and Violence Protection

Act that would support the government’s limited reading of

the purpose and availability of U-visas. Congress’s purpose

in establishing the U-visa was to protect “[a]ll women and

children who are victims of [qualifying] crimes,” not merely

those who have information or assistance to provide

regarding high-profile crimes. See Pub. L. No. 106-386,

§ 1513(a)(1)(B), 114 Stat. 1464, 1533 (2000) (emphasis

added). Congress also intended to “strengthen the ability of

law enforcement agencies to detect, investigate, and

prosecute” all qualifying crimes, not merely those crimes that

the government might conclude in retrospect, and in the

context of later litigation, are significant. Id. § 1513(a)(2)(A).

Finally, we do not accord significant weight to the fact

that Cisneros later applied for a U-visa and was rejected.

Like the petitioner in Torres-Tristan v. Holder, 656 F.3d 653,

655 (7th Cir. 2011), upon which the government relies,

Cisneros applied for a U-visa only after she had already

violated 8 U.S.C. § 1326 by re-entering the United States.

See id. at 655. The fact that USCIS rejected her application

after she had been criminally convicted in 2013 of illegal

reentry has little bearing on whether she would have been

successful had she applied for a U-visa in 2010, before she

had been ordered removed and before her subsequent re-

entry.

28 UNITED STATES V. CISNEROS-RODRIGUEZ

We conclude that had Cisneros applied for a U-visa in

2010, it was plausible that she would have obtained one.

Conclusion

Based on the foregoing, we conclude that the entry of

Cisneros’s administrative removal order in 2010 was

“fundamentally unfair.” We hold that Cisneros’s due process

rights were violated when Agent Linares told her that an

attorney would not help her. We also hold that Cisneros was

prejudiced by the violation because, in its absence, it was

plausible that she would have been transferred from

administrative removal proceedings to removal proceedings

before an immigration judge, and that she would then have

sought and obtained a U-visa. We therefore reverse and

remand with instructions to dismiss Cisneros’s indictment

and vacate her conviction.

REVERSED and REMANDED with directions.

Cisneros’s motion to supplement the record on appeal is

denied as moot.

SILVER, District Judge, dissenting:

Having fully evaluated the many statutes, regulations, and

policies at issue, as well as the record and opinion of the

district court, I regrettably must dissent from the majority.

I find the district court did make credibility findings and

determined Cisneros was not credible. Under the applicable

standard of review, deference is required. Also, I believe the

law governing administrative removal proceedings would

UNITED STATES V. CISNEROS-RODRIGUEZ 29

have prevented Cisneros from staying, vacating, or

converting the proceedings. Finally, although I agree that

with assistance of counsel, Cisneros theoretically could have

petitioned for and received a decision regarding a U-visa

prior to her removal from the United States, I disagree that

Cisneros has carried the burden to establish she plausibly

would have been granted a U-visa. Accordingly, I dissent.

I. Due Process

On the issue of due process, the majority concludes the

“critical question” is whether “Linares advised Cisneros that

an attorney could not help her” and that the district court did

not decide this question. However, reading the entirety of the

district court opinion in context, I find the district court did

decide this question and, based on the record before this

court, that determination is entitled to strong deference.

Alternatively, even if the district court did not decide this

question, this court is required to remand for resolution of all

underlying factual issues.

A. The District Court’s Factual Findings

All parties concede the district court made factual

findings regarding Cisneros’s right to counsel. Cisneros’s

opening brief on appeal argues the district court was incorrect

in finding Cisneros was properly advised of her rights. The

reply brief repeats this argument, stating the district court

“credited Agent Linares’ testimony” and relied on “clearly

erroneous factual findings” in concluding Agent Linares

properly advised Cisneros of her rights. The government’s

brief also claims the district court made factual findings

regarding Cisneros’s right to counsel.

30 UNITED STATES V. CISNEROS-RODRIGUEZ

I agree the district court did not explicitly and expressly

reject Cisneros’s testimony that Linares affirmatively

dissuaded her from obtaining an attorney. But reading the

opinion as a whole, the district court found Cisneros

incredible regarding what Linares told her about counsel.

Assuming the district court’s factual findings were only

implicit rather than explicit, with both parties agreeing factual

findings were made, this court is required to review those

findings under the normal standard of review: clear error. See

United States v. Kinsman, 540 F.2d 1017, 1019 (9th Cir.

1976), withdrawn on other grounds, 573 F.2d 3 (9th Cir.

1978) (district court’s implicit factual findings must be

reviewed for clear error). Furthermore, a district court’s

credibility findings are entitled to a high degree of deference.

See Anderson v. City of Bessemer City, N.C., 470 U.S. 564,

575 (1985) (“When findings are based on determinations

regarding the credibility of witnesses, Rule 52(a) demands

even greater deference to the trial court’s findings; for only

the trial judge can be aware of the variations in demeanor and

tone of voice that bear so heavily on the listener’s

understanding of and belief in what is said.”). This deference

precludes an appellate court from substituting a preferred

opinion of the evidence: “[I]f the district court’s findings are

plausible in light of the record viewed in its entirety, [we]

cannot reverse even if [we are] convinced [we] would have

found differently.” United States v. Torlai, 728 F.3d 932, 937

(9th Cir. 2013) (citation omitted).

The majority’s analysis of the district court’s credibility

findings is contrary to the well-established required deference

in two respects. First, it adopts a rule of construction without

support in law that a district court must credit all or none of

a witness’s testimony. Second, the district court found the

UNITED STATES V. CISNEROS-RODRIGUEZ 31

portions of Cisneros’s testimony regarding the information

she received about her right to counsel explicitly not credible.

The record shows at one point, Cisneros testified she told

Linares she had been the victim of extortion. But the district

court remarked there was “no credible evidence in the record

that [Cisneros] told Linares . . . that she had been a victim of

extortion.” (emphasis added). The district court also rejected

Cisneros’s testimony regarding her right to counsel and held:

As it relates to the issue of [Cisneros] having

access to an attorney, the testimony is in

conflict. Linares testified that at their meeting

he would have provided [Cisneros] with a list

of legal counsel. Defendant testified that

Linares never gave her, or any of the other

two person [sic] being processed at the same

time a list of lawyers. As Linares testified that

it is his habit to provide all aliens he processes

with a list of attorneys, the Court finds it

unlikely that none of the aliens being

processed at this time were so provided. . .

[FN 3] While the Court makes this finding, it

also acknowledges that evidence of

disciplinary action taken against Linares by

ICE was introduced as impeachment during

cross-examination.

(emphasis added). Based on the findings cited above, it is

clear the district court did not believe Cisneros was telling the

truth about the actions and statements she alleged Linares

made in connection to Cisneros’s right to counsel. And while

some may disagree with that view of Cisneros’s testimony, it

is a plausible conclusion based on the entire record of the

32 UNITED STATES V. CISNEROS-RODRIGUEZ

hearing. See, e.g., Carrion v. Smith, 549 F.3d 583, 590 (2d

Cir. 2008) (discussing Fed. R. Evid. 406 and affirming

district court reliance on testimony of “established practice”

in making findings of fact).

B. Alternatively, Remand Is Usually Required to

Address a Lack of Factual Findings

Even if we were to decide the district court did not make

an explicit factual finding deemed somehow necessary, an

appellate court is “not in the business of making findings of

fact.” Forest Grove Sch. Dist. v. T.A., 638 F.3d 1234, 1238

(9th Cir. 2011). In fact, according to the Supreme Court,

when a district court has not made the necessary findings of

fact, “the usual rule is that there should be a remand for

further proceedings to permit the trial court to make the

missing findings.” Pullman-Standard v. Swint, 456 U.S. 273,

291–92 (1982). “The only exception to this rule is when the

record permits only one resolution of the factual issue.”

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387

n.3 (2008). As previously stated, my reading of the record

compels the conclusion that the district court found Cisneros

did not testify truthfully. Therefore, remand rather than

appellate fact finding is the only course.

The majority offers two reasons for not remanding. First,

the district judge who conducted the evidentiary hearing has

since retired and, second, an appellate court must accept as

true any statement offered by a witness which is not directly

contradicted. The second reason cannot be right, and I am not

aware of any law requiring a district court accept all

testimony as credible. And as for the first reason, the majority

posits the “district judge assigned the case on remand would

be in no better position than we are to decide the factual

UNITED STATES V. CISNEROS-RODRIGUEZ 33

question.” That is also an incorrect appellate standard of

review. On remand, a different district judge may opt to take

additional evidence, such as additional testimony from

Cisneros and Linares.1 The district judge on remand may also

seek additional documents which could either support or

undermine Cisneros’s allegations. Simply, credibility is

impossible to judge on appeal—on the paper record. The

demeanor of witnesses is a critical advantage of the district

court judge but not appellate judges. Hernandez v. New York,

500 U.S. 352, 365 (1991) (“As with the state of mind of a

juror, evaluation of the prosecutor’s state of mind based on

demeanor and credibility lies ‘peculiarly within a trial judge’s

province.’”). And of course, it is not unheard of for a case to

be assigned to a new district judge on remand. The fact that

this particular district judge is no longer available to hear the

case cannot support our foray into appellate fact finding.

II. Prejudice

Even assuming Agent Linares told Cisneros an attorney

would not be able to help her, Cisneros has not shown she

1

Even though Cisneros has been deported, her counsel must continue to

have contact with her, otherwise this appeal on her behalf would be

improper. See Marrow v. United States, 772 F.2d 525, 530 (9th Cir. 1985)

(citing ABA Standards for Criminal Justice 4-8.2, 21-2.2 (2d ed. 1980))

(“The decision whether to appeal ‘must be the defendant’s own choice’”);

Dep’t of Water & Power of City of Los Angeles v. Anderson, 95 F.2d 577,

580 (9th Cir. 1938) (stating appeal would be dismissed if it appeared

attorneys appearing for appellant had no authority to conduct case for

appellant). And while she may not be able to enter the country to testify,

a district judge may permit her to offer testimony by telephone or

videoconference. Cf. Maryland v. Craig, 497 U.S. 836 (1990) (finding

testimony via one-way video monitor did not violate confrontation clause).

34 UNITED STATES V. CISNEROS-RODRIGUEZ

experienced prejudice from that statement.2 It is not plausible

that, absent this comment by Linares, Cisneros would have

been able to convince ICE to convert her removal from

administrative to non-administrative proceedings. Second, it

is not plausible, had she been able to stay her removal, that

she would have been granted a U-visa and avoided

deportation.

A. Cisneros Could Not Have Avoided Administrative

Removal

Once Cisneros was convicted of aggravated felonies in

June 2009, the Notice for administrative proceedings was

approved in October 2009, and the Notice was served in May

2010, Cisneros’s options for challenging her administrative

removal were, by statute and case law, extremely limited. The

type of relief Cisneros claims she could have sought and the

type of relief the majority holds she might have obtained (i.e.

a U-visa) is implausible. A relatively detailed examination of

administrative removal proceedings proves the point.

Under 8 U.S.C. § 1228(b), the Attorney General has

discretion to remove non-Legal Permanent Residents

convicted of aggravated felonies through either regular or

administrative proceedings. Cisneros concedes she had been

convicted of an aggravated felony. Accordingly, the record

before the court establishes Cisneros was eligible to be

removed through administrative proceedings.

2

It is worth noting Cisneros’s opening brief contained two short

paragraphs on the issue of prejudice which stated only that Cisneros’s

facial eligibility for a U-visa demonstrated she had plausible grounds for

relief and, therefore, suffered prejudice.

UNITED STATES V. CISNEROS-RODRIGUEZ 35

Administrative removal proceedings commence when an

ICE agent serves a deportable person with a Notice of Intent

to Issue a Final Order of Administrative Removal. 8 C.F.R.

§ 238.1(b)(2)(i). After proceedings commence, the deportable

alien may challenge her placement in administrative rather

than regular proceedings, but only on very limited grounds.

Thus, the majority is correct that “an ICE agent can take an

undocumented alien already put in administrative removal

proceedings out of those proceedings and put her into

removal proceedings before an Immigration Judge.” But

contrary to the majority’s representation, it is not as simple as

an ICE agent making this discretionary decision. Instead, a

regulation makes clear how and when transfer out of

administrative proceedings into regular proceeding is

appropriate. According to 8 C.F.R. § 238.1(b)–(d), an ICE

agent may transfer a non-citizen whose administrative

removal proceeding has begun to non-administrative

proceedings if the non-citizen “rebut[s] the allegations

supporting the charge” and, upon examination of the

evidence, the agent concludes the non-citizen is “not

amenable to [administrative] removal.” See 8 C.F.R.

§ 238.1(b)–(d). Cisneros has not asserted either of these

grounds. Therefore, Cisneros has not identified a plausible or

even a possible way she could have been transferred out of

the administrative proceedings.

B. Non-Citizens Cannot Obtain U-Visas While in

Administrative Proceedings

Given that Cisneros was properly in administrative

proceedings and has not identified any possible way she

could have been transferred out of administrative

proceedings, she was barred from obtaining any form of

discretionary relief while in those proceedings. Under the

36 UNITED STATES V. CISNEROS-RODRIGUEZ

language of § 1228(b)(5), Cisneros was statutorily barred

from obtaining discretionary relief while in administrative

proceedings. I agree with the majority that non-citizens who

have been convicted of aggravated felonies are not

automatically barred from applying for or obtaining a U-visa.

United States v. Alvarado-Pineda, 774 F.3d 1198, 1201–1202

(9th Cir. 2014) (citing 8 U.S.C. § 1101(a)(15)(T)). But a

non-citizen who is prima facie eligible for a U-visa and has

been convicted of an aggravated felony may only obtain

discretionary relief (e.g. a waiver of inadmissibility and U-

visa) outside of administrative removal proceedings, for

instance, when as mentioned in Alvarado-Pineda, the alien

seeks admission to the U.S. from another country. See

Alvarado-Pineda, 774 F.3d at 1201–1202 (discussing waiver

and U-visa as forms of relief from which aggravated felons

are not barred when applying for admission to the U.S.). In

sum, the majority is incorrect that Cisneros could have

obtained a U-visa after service of the Notice of Intent to Issue

a Final Order of Administrative Removal but before the

issuance of the actual Final Order of Administrative

Removal—in other words, while she was in administrative

removal proceedings.

The Ninth Circuit has explicitly recognized the bar on

discretionary relief for non-citizens in administrative removal

proceedings on at least two occasions. In United States v.

Calderon-Segura, 512 F.3d 1104, 1108 (9th Cir. 2008), the

court held that once placed in administrative proceedings, “a

non-[Legal Permanent Resident] aggravated felon subject to

expedited removal [is] statutorily ineligible for any

discretionary relief.” Second, in United States v. Reyes-

Bonilla, 671 F.3d 1036, 1050 (9th Cir. 2012), it was held an

individual “could not receive any discretionary relief from

removal because he had been placed in [administrative]

UNITED STATES V. CISNEROS-RODRIGUEZ 37

proceedings based on his felony convictions.” See also

United States v. Garcia-Martinez, 228 F.3d 956, 964 (9th Cir.

2000) (holding “deportation was a foregone conclusion” for

alien who did not challenge his conviction for an aggravated

felony).

In Reyes-Bonilla, the court concluded the defendant’s

“status as an aggravated felon” meant “the only form of

immigration relief available to [him] was deferral of removal

under CAT.” Reyes-Bonilla, 671 F.3d at 1050. The majority

attempts to read into this a qualification to the bar against

discretionary relief in administrative proceedings. But this is

a misunderstanding of Reyes-Bonilla. The majority states

Reyes-Bonilla “did not treat the fact that the defendant had

been placed into administrative proceedings as a bar to all

relief from removal, notwithstanding the text of

§ 1228(b)(5).” That is correct, but the majority is confusing

discretionary and mandatory types of relief. CAT relief is not

discretionary, it is mandatory. Reyes-Bonilla, 671 F.3d at

1050. Thus, the fact that § 1228(b)(5) did not bar potential,

mandatory CAT relief in Reyes-Bonilla has no bearing on

whether that statute bars discretionary forms of relief, such as

waivers of inadmissibility and U-visas.

Overall, the majority ignores the law that created the one-

two punch of an aggravated felony conviction coupled with

placement in administrative removal proceedings. The

majority maintains that because such convictions do not

absolutely bar U-visa eligibility, Cisneros could have applied

for and received a U-visa even while she was engaged in

administrative removal. In reaching this conclusion, the

majority relies upon a 2009 DHS policy under which it claims

ICE vowed to stay administrative removal proceedings if

there were a pending U-visa petition. See Memorandum from

38 UNITED STATES V. CISNEROS-RODRIGUEZ

Peter S. Vincent, Principal Legal Advisor, U.S. Immigration

& Customs Enforcement to the Office of the Principal

Legal Advisor (Sept. 25, 2009), available at

http://1.usa.gov/1GqVkYK. But the majority misreads the

policy. The policy does not provide for stays of active

administrative removal proceedings. Instead, it provides that

ICE will stay regular removal proceedings, final orders of

removal (resulting from regular proceedings), and final orders

of administrative removal (resulting from administrative

proceedings).

C. Cisneros Might Have Applied for a U-Visa and

Stay of Deportation After Her Removal

Proceedings Closed

The complicated journey through administrative

proceedings and the statutory bar of § 1228(b)(5) shows the

flaws in the majority’s analysis. But there is a more

convincing argument, which neither the majority nor Cisneros

pursue and which created a possibility of skirting the bar of

§ 1228(b)(5).

Had Cisneros been advised and obtained an attorney after

receiving the Notice of Intent to Issue a Final Order of

Administrative Removal, her attorney could have filed a U-

visa petition on her behalf and, after receiving a Final Order

of Administrative Removal (“FARO”), could have applied for

a stay of her deportation pending a determination of the U-

visa petition. The possibility of applying for a stay of

deportation is provided not only in ICE policy, but in

regulation: “The filing of a petition for U-1 nonimmigrant

status has no effect on ICE’s authority to execute a final

order, although the alien may file a request for a stay of

removal pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a).”

UNITED STATES V. CISNEROS-RODRIGUEZ 39

8 C.F.R. § § 214.14(c)(1)(ii). Section 241.6(a) states: “[The

district director may,] in his or her discretion and in

consideration of factors listed in 8 CFR 212.5 and section

241(c) of the Act, []grant a stay of removal or deportation for

such time and under such conditions as he or she may deem

appropriate.” And § 212.5(b) includes “urgent humanitarian

reasons” or “significant public benefit.” 8 C.F.R. 212.5(b).

In sum, the majority’s contention that an attorney could

have persuaded ICE to transfer Cisneros out of administrative

proceedings or stay her administrative proceedings is

erroneous. But no doubt an attorney might have helped

Cisneros avoid immediate deportation by filing a U-visa

application and an accompanying motion to stay her

deportation. This approach, however, is not addressed by the

majority nor has Cisneros provided any meaningful briefing

on this strategy.3

Thus, the best scenario for Cisneros, assuming she had

not waived her right to counsel, would have been to obtain an

attorney subsequent to her meeting with Agent Linares, then

to have immediately met with the attorney who would have

had to file applications for a waiver of inadmissibility and a

U-Visa, and moved for a stay of her deportation pending their

resolution, and finally, to hope the stay were granted.

Cisneros has not presented any coherent argument that this

sequence of events was plausible. But even assuming it were,

Cisneros still has not shown it was plausible that after

receiving a stay of her deportation she would have been

granted a U-visa and avoided removal.

3

The regulations governing post-removal order stays were first brought

to the court’s attention in a 28(j) letter submitted after the completion of

appellate briefing.

40 UNITED STATES V. CISNEROS-RODRIGUEZ

D. Cisneros Has Not Shown She Plausibly Would

Have Been Granted a U-Visa

The majority relies heavily on an alleged general U-visa

approval rate of seventy percent in determining Cisneros had

a plausible chance of being granted a U-visa. But this statistic

does not account for many possible variables among

petitioners, including criminal histories, particularly for

aggravated felonies.

The rejection by this circuit of general statistics as a

means of proving plausibility is embedded in case law.

United States v. Corrales-Beltran, 192 F.3d 1311, 1318 (9th

Cir. 1999) (“[An alien] must make a plausible showing that

the Attorney General would have exercised discretion in his

favor because of the unique circumstances of his own case.”).

In Corrales-Beltran, the court held even a general statistic

showing discretionary relief was granted fifty percent of the

time was insufficient to show such relief was plausible with

respect to a specific individual with a unique set of

circumstances. Instead, the court held, “it would be sheer

speculation to conclude, without more, that [the] appeal

would have been successful.” Id. In United States v. Barajas-

Alvarado, the Ninth Circuit held: “[T]o show ‘plausible

grounds’ for relief, an alien must show that . . . based on the

‘unique circumstances of [the alien’s] own case,’ it was

plausible (not merely conceivable) that the [Immigration

Judge] would have exercised his discretion in the alien’s

favor.” 655 F.3d 1077, 1089 (9th Cir. 2011). The clear

message of these cases is that general statistics are of little

help to the court in determining the plausibility of relief for

non-citizens challenging their removal. The majority does not

explain why a global seventy percent approval rate would

UNITED STATES V. CISNEROS-RODRIGUEZ 41

make it plausible for individual relief when the court has

previously held a fifty percent general approval rate does not.

This is problematic for another reason. The numbers from

which it was calculated are open to several alternative,

equally possible interpretations. See Number of I-918

Petitions for U Nonimmigrant Status (Victims of

Certain Criminal Activities and Family Members) by

Fiscal Year, Quarter, and Case Status 2009–2015, U.S.

Citizenship & Immigration Services, available at

http://1.usa.gov/18LyQG3.4 The majority arrived at the

seventy percent statistic by dividing the number of petitions

approved and denied in 2010 by the number approved

[(10,073/14,420) x 100=69.85%]. But, at the end of 2009,

11,863 petitions were pending. In 2010, 10,742 more

petitions were submitted. Out of the 22,605 pending petitions

in 2010, 10,073 were approved. By that estimate, the

approval rate was forty-five percent. Furthermore, it is

unclear from the chart when the petitions in each category

(approved, denied, pending) were submitted. For example,

petitions approved in 2010 could have been hold-overs from

those pending in 2009. Finally, the petitions pending in 2009

might have been submitted any time between 2000 (when the

U-visa was created) and 2009. Therefore, while it is possible

to derive a seventy percent approval rate from analyzing a

particular year, it is unclear whether that accurately reflects

the reality.

4

The statistics were not part of the record before the district court and

were first submitted to this court in a 28(j) letter, even though they had

been available for years prior. Furthermore, Cisneros’s 28(j) letter

contained only raw data for U-visa petitions received, approved, denied,

and pending during 2009 and 2010. The seventy percent approval rate was

calculated by the majority, not Cisneros.

42 UNITED STATES V. CISNEROS-RODRIGUEZ

The marginal value of these statistics is further shown by

the complete absence of any information about why

individuals were approved or denied. We know that in

evaluating applications for waivers of inadmissibility, USCIS

considers “the number and severity of offenses of which the

applicant has been convicted.” 8 C.F.R. § 212.17(b)(1)–(2).

We do not know why Cisneros’s petition was denied but we

do know that even without her conviction for reentry after

deportation, she had a significant criminal history. The single

difference between Cisneros’s theoretical U-visa petition

before removal and the one she eventually filed is that she

illegally reentered the U.S. after she had been deported. The

majority appears to have concluded that merely her illegal

reentry conviction defeated Cisneros’s application, not her

lengthy criminal record, including convictions for possession

for sale of methamphetamine. We have nothing in the record

or law to support this assumption.

The majority explains that the overall approval rate for U-

visas, coupled with Cisneros’s citizen family members,

establishes it was plausible her U-visa application would have

been approved. I do not understand the basis for this

conclusion. Perhaps the majority means the overall seventy

percent approval rate establishes, as a matter of law, that a U-

visa was plausible. After all, if someone with a very

substantial criminal record such as Cisneros always has a

“plausible” case for a U-visa, it would be difficult to see

which individuals would not. My impression is that the

majority’s disregard of the seriousness of the Cisneros’s prior

offenses is colored by the view that a co-defendant,

Rodriguez, allegedly forced Cisneros to sell

methamphetamine. But Rodriguez was never convicted of

this conduct. The only crime against Cisneros with which

Rodriguez was charged was extortion while the two were

UNITED STATES V. CISNEROS-RODRIGUEZ 43

incarcerated for their shared drug crime.5 This prediction

should not be based on unsubstantiated assumptions.

Determining the plausibility that a government agency

mired in a web of complicated governing law would have

granted a single petition over five years ago is difficult. But

the party arguing plausibility, in this case Cisneros, always

bears the burden of proof. And, despite the possibility that

counsel theoretically might have submitted a U-visa petition

and stayed Cisneros’s removal until the outcome of that

petition, Cisneros has not met her burden of showing she had

a plausible chance of being granted relief from removal.

Therefore, I must dissent.

5

In crediting Cisneros’s testimony and her account of coercion, the

majority also mischaracterizes or disregards the underlying facts. The

majority states, in 2006, Cisneros reported to police that Rodriguez had

stolen her car. But Cisneros testified at Rodriguez’s extortion hearing that

she had never filed a police report regarding the stolen vehicle. Rather, she

stated the police had come to her after her vehicle was discovered in

connection with a crime involving stolen mail. At that point, despite

testifying that she did not witness the crime or have any other substantial

contact with or knowledge of Rodriguez, Cisneros said she told police

Rodriguez had stolen her car and was responsible for the stolen mail.

These facts cast serious doubt on whether we know the full story of

Cisneros’s relationship with Rodriguez.