United States v. Cabrera-Perez

An alien is only eligible for voluntary departure if he has not committed a crime of violence.

After being charged with aggravated assault, Armando Cabrera-Perez ("Cabrera-Perez") plead guilty to counts 3 and 4 of the direct complaint. Later on, a Notice to Appear issued by the Immigration and Naturalization Service subjected Cabrera-Perez to removal from the United States. Following Cabrera-Perez's deportation to Mexico, he attempted to reenter the United States using false documentation. The government indicted Cabrera-Perez on attempted entry and filed a superseding indictment for aggravated identity theft. The court denied Cabrera-Perez's motion to dismiss the superseding indictment. The court reasoned that even though the Immigration Judge allegedly failed to advise Cabrera-Perez of his eligibility for voluntary departure during his removal proceedings, Cabrera-Perez suffered no prejudice in the process. On appeal, the panel upheld the district court ruling. The panel held that an alien can only be granted voluntary departure if he has not been convicted of a crime of violence. Because Cabrera-Perez’s aggravated assault charge constituted a crime of violence under the district court’s modified categorical approach he was ineligible for voluntary departure. The panel concluded that the district court did not err in applying the modified categorical approach in determining that Cabrera-Perez had committed crimes of violence. Therefore he suffered no prejudice from not being advised of voluntary departure. The district court’s denial of Cabrera-Perez’s motion to dismiss is AFFIRMED.