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Relief from removal that is available within the broad discretion of the Attorney General is not a right protected by due process. More specifically, because an alien's eligibility for discretionary relief from removal is not a liberty or property interest deserving of due process protection, an immigration judge's failure to explain the eligibility for such relief does not rise to the level of fundamental unfairness.
Appellant Gabriela Cordova-Soto, a Mexican national, attained lawful permanent residency in the United States at age 13. In 2005, agents of the Immigration and Customs Enforcement Agency ("ICE") served appellant with a Notice to Appear before an Immigration Judge ("IJ"). The notice charged her as removable as (1) an aggravated felon based on the methamphetamine conviction, (2) an alien convicted of two crimes involving moral turpitude, and (3) an alien convicted of a controlled substance offense. At the processing center, an ICE agent presented appellant with a boiler plate form that was entitled “Stipulated Request for Issuance of Final Order of Removal, Waiver of Appearance and Hearing”, which appellant signed. After finding appellant removable, the IJ accepted the Stipulated Form of Removal and ordered her removal to Mexico. In 2012, a jury indicted appellant for the offense of illegal re-entry after removal in violation of 8 U.S.C. § 1326. Appellant filed a motion to dismiss the indictment, challenging the validity of the 2005 removal order. Appellant argued that the removal order was fundamentally unfair because the IJ did not conduct a hearing and expressly determine that her waiver of rights in the Stipulated Form of Removal was voluntary, knowing, and intelligent as required by 8 C.F.R. § 1003.25(b). The district court, noting that the appellant was fluent in English and that the stipulation she signed was written in plain language that clearly stated the legal effect of signing the waiver, held that the appellant intelligently, knowingly, and voluntarily entered into the stipulation of removal. Appellant challenged the district court’s decision.
Was the 2005 removal order valid, thereby rendering the appellant’s conviction for illegal re-entry proper?
The Court held that the appellant was properly convicted of illegal re-entry into the United States after removal since she was fully advised of her rights prior to waiving a removal hearing even if the immigration judge did not expressly find that the waiver was knowing and voluntary, and thus the removal order was valid and did not constitute a denial of due process. The Court further held that due process did not require that the appellant be advised of the possibility that she could become eligible for discretionary relief from removal since she did not have a protected property or liberty interest in such discretionary relief.