United States v. Cisneros-Resendiz

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Immigration
  • Date Filed: 09-06-2011
  • Case #: 10-50521
  • Judge(s)/Court Below: Circuit Judge Ikuta for the Court, Circuit Judges Rymer and Tallman.
  • Full Text Opinion

An Immigration Judge (IJ) has not prejudiced a defendant by not warning them of the effects of a withdrawal of an application for admission when it was unlikely the judge would have granted application for admission. Without a showing of prejudice, the defendant is precluded from a collateral attack on any removal orders.

In 2006 Ricardo Cisneros-Resendiz (Cisneros), a native of Mexico “attempted to enter the United States falsely claiming he was a U.S. citizen.” After being brought into custody he was found guilty for possession of methamphetamine. The Department of Homeland Security (DHS) issued Cisneros a Notice to Appear based on his application for admission by making a false claim that he was a U.S. citizen and that he was inadmissible because he had a drug conviction. At a removal hearing Cisneros admitted to the charges and was removed to Mexico. Cesneros has entered the U.S. illegally four times since then and in “2010 he was indicted by a federal grand jury for illegal reentry after removal.” Cisneros entered into a plea agreement that preserved his right to appeal which he now does on the basis that he was prejudiced on not being warned by the judge that he could have withdrawn his application for admission. The Ninth Circuit held that the IJ did not prejudice Cisneros by not warning him, thus Cisneros had no right to make a collateral attack on the validity of the removal order. Though an IJ has a duty to inform an alien of their available remedies, it has never been held that withdrawal of application for admission is such a remedy. The IJ did not have a duty unless there was a likely chance they would have granted application for admission. Given Cisneros’s prior illegal entries and criminal record, the IJ did not commit reversible error. AFFIRMED

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