United States v. Valdez-Novoa

If an alien challenges his deportation under 8 U.S.C. § 1326(d)(3), he must demonstrate: (1) the defects in the proceeding were a violation of his due process rights; and, (2) he suffered prejudice, in that the Immigration Judge failed to advise him of his eligibility to voluntarily depart and the Immigration Judge would have granted such voluntary departure.

An Immigration Judge (“IJ”) removed Jesus Valdez-Novoa from the United States in 1999 because he committed an aggravated felony. In 2011, Valdez-Novoa attempted to reenter the United States, but the Department of Homeland Security (“DHS”) thwarted his attempt. He was videotaped by DHS confessing his attempt to reenter with fake identification and explaining his 1999 removal order. On appeal, Valdez-Novoa argues his 1999 removal order was in error because the IJ failed to inform him of his eligibility for voluntary departure, constituting a violation under 8 U.S.C. § 1326(d)(3), and his 2011 removal violated the doctrine of corpus delicti. The Ninth Circuit held that in order for removal proceedings to be rendered in error under 8 U.S.C. § 1326(d)(3), it must be “fundamentally unfair,” in that there is a due process violation and the defendant suffers prejudice. The panel held that Valdez-Novoa’s removal order was not fundamentally unfair because if one is convicted of an aggravated felony, he or she is not eligible for voluntary departure. Therefore, there was no due process violation. Additionally, the panel explained, even if there was a due process violation, Valdez-Novoa’s argument would fail because one only suffers prejudice if the IJ fails to advise him or her of voluntary departure eligibility and the IJ would have granted such voluntary departure. This was not the case for Valdez-Novoa. Valdez-Novoa also challenged the government under the corpus delicti doctrine because the government relied heavily on his confession that he committed the crime of illegal reentry. In order to overcome this cause of action the government must prove the criminal conduct occurred and the evidence towards its occurrence is trustworthy. The panel held that because the government had ample evidence to corroborate Valdez-Novoa’s confession that he attempted an illegal reentry, Valdez-Novoa’s argument failed. AFFIRMED.