Monday, March 02, 2015

Case o' The Week: (Not) Dancing the Two-Step, Valdez-Novoa and "Plausible" Voluntary Departure

  Like Savage and Hyneman, the Ninth asks: Plausible, busted, or confirmed?
  United States v. Valdez-Novoa, 2015 WL 831667 (9th Cir. Feb. 27, 2015) (Ord. & amend op.), decision available here

Players: Decision by Judge Bybee, joined by Judge Gould. Compelling dissent by Judge McKeown. Hard-fought appeal by Kristi Hughes and Lauren Cusick, Federal Defenders of San Diego, Inc.

Facts: Valdez-Novoa was ordered removed as an agg felon in 1999 by an IJ. Id. at *1. He was not advised of his apparent eligibility for voluntary departure. Id. There then followed years of entries and criminal conduct, set forth in detail by Judge Bybee. Id. at *2. In 2011, Valdez-Novoa was arrested, charged, tried and convicted for attempted reentry. Id. at *1.

Issue(s): “[Valdez-Novoa] collaterally attacks the underlying . . .  1999 removal order under 8 U.S.C. § 1326(d). He alleges that the IJ erred in concluding that he had been convicted of an aggravated felony and therefore violated his right to due process by failing to advise him of his apparent eligibility for voluntary departure relief.” Id.

Held: “We hold that even if the IJ should informed Valdez-Novoa of his apparent eligibility for voluntary departure, the failure to do so did not render the removal proceedings ‘fundamentally unfair’ under § 1326(d)(3) because Valdez-Novoa was not prejudiced by the alleged error.” Id. at *1.

Of Note: Valdez-Novoa is (unfortunately) an important case for illegal reentry defense, but not for the holding described above. The heart of the case is what constitutes “prejudice” for a § 1326(d) challenge, and how the burden is allocated to show that it is plausible that the IJ would have granted discretionary relief. Id. at *5-*6. Judge Bybee defines “prejudice” as when the defendant shows relief was “plausible, rather than merely conceivable or possible, that an IJ would have granted the relief for which he was apparently eligible.” Id. at *5. 
  The Court also clarifies a “different ambiguity” on the burden to make this plausibility showing. Id. at *6. Under Valdez-Novoa, the “prima facie showing of prejudice” required of the defendant means the defendant must show that it was “plausible that he would have received some form of relief from removal.” Id. at *7. The opinion effectively eliminates the two-part burden shifting inquiry, and instead simply describes the process as the burden to show prejudice rests upon the defendant. Id. at 7.

How to Use: Judge McKeown persuasively dissents. Id. at *16 (McKeown, J., dissenting). She complains that the majority elevates the Ninth’s benchmark for prejudice from “plausibility” to the “higher standard of either preponderance or probability.” Id. Judge McKeown turns to two Supreme Court cases to drive the point home – ponder her dissent when fighting a § 1326(d) battle and touting Raya-Vaca (see below).
For Further Reading: Last November we touted the great decision by Judge Murguia in United States v. Victor Raya-Vaca, 771 F.3d 1195 (9th Cir. 2014), see blog here. In Raya-Vaca, Judge Murguia examined the two-step § 1326(d) process to evaluate the plausibility of relief from removal, id. at 1206, and emphasized that a defendant need not prove that relief was probable. Id. Instead, a defendant need only show that there was only “some evidentiary basis on which relief could have been granted.” Id. 
   Interesting to read the two three-judge panel decisions in Raya-Vaca and Valdez-Novoa, and compare their different discussions of the plausibility analysis. (Raya-Vaca is not cited in the just-amended Valdez-Novoa decision). 
   The Feb. 27 order conveying the amended Valdez-Novoa decision reported that the petition for rehearing was denied. Any tension between these two cases remains a fertile field for exploration in the district courts.

Image of “Plausible” sign from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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