                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 13-10645
             Plaintiff-Appellee,
                                                  D.C. No.
                   v.                       5:11-cr-00744-DLJ-1

 XOCHITL CISNEROS-RODRIGUEZ,
           Defendant-Appellant.                    OPINION


        Appeal from the United States District Court
          for the Northern District of California
     D. Lowell Jensen, Senior District Judge, Presiding

                   Argued and Submitted
         March 12, 2015—San Francisco, California

                    Filed December 23, 2015

 Before: William A. Fletcher and Morgan Christen, Circuit
   Judges and Roslyn O. Silver,* Senior District Judge.

                 Opinion by Judge W. Fletcher;
                    Dissent by Judge Silver




  *
    The Honorable Roslyn O. Silver, Senior District Judge for the U.S.
District Court for the District of Arizona, sitting by designation.
2          UNITED STATES V. CISNEROS-RODRIGUEZ

                           SUMMARY**


                           Criminal Law

    Reversing a criminal judgment, the panel remanded with
instructions to dismiss an indictment and vacate the
defendant’s conviction for illegal reentry.

    The panel held that if an Immigration and Customs
Enforcement agent erroneously advises an uncounseled alien
in an administrative removal proceeding that an attorney will
not be able to provide assistance, any waiver of the right to
counsel based on that advice is invalid. The panel held that
an ICE agent therefore obtained an invalid waiver of the
defendant’s right to counsel, in violation of due process,
when he advised the defendant that an attorney would not
have been able to help her when she was facially eligible for
a U-visa, a form of hardship relief available to a person
convicted of an aggravated felony.

    The panel further held that the defendant was prejudiced
by the due process violation because it was plausible that she
would have obtained a U-visa had she applied for one,
notwithstanding the fact that she had already been placed in
administrative removal proceedings.

    Dissenting, District Judge Silver wrote that the district
court made credibility findings, and that deference to the
district court’s determination that the defendant was not
credible is required; that the law governing administrative

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
         UNITED STATES V. CISNEROS-RODRIGUEZ                 3

removal proceedings would have prevented the defendant
from staying, vacating, or converting the proceedings; and
that the defendant has not carried the burden to establish she
plausibly would have been granted a U-visa.


                         COUNSEL

Varell Laphalle Fuller (argued), Assistant Federal Public
Defender, Federal Public Defender’s Office, San Jose,
California, for Defendant-Appellant.

Barbara Valliere, Chief, Appellate Division, Anne M. Voigts
(argued), Assistant United States Attorney, Office of the
United States Attorney, San Francisco, California, for
Plaintiff-Appellee.


                         OPINION

W. FLETCHER, Circuit Judge:

    Xochitl Cisneros-Rodriguez (“Cisneros”), an
undocumented alien, was convicted in 2009 of violating
California narcotics laws and was subsequently placed in
administrative removal proceedings. She was told by the
Immigration and Customs Enforcement (“ICE”) agent who
conducted the proceeding that, because she had been
convicted of an aggravated felony, an attorney could not help
her. She was ordered removed in 2010. When Cisneros
returned to the United States without permission in 2011, she
was criminally charged with illegal reentry. She moved in
the district court to dismiss the indictment on the ground that
her 2010 removal order was fundamentally unfair because her
4        UNITED STATES V. CISNEROS-RODRIGUEZ

due process rights had been violated. The district court
denied the motion and Cisneros was convicted of illegal
reentry.

    We hold that the ICE agent who conducted Cisneros’s
administrative removal proceeding violated her due process
rights by telling her that an attorney would not have been able
to help her when she was facially eligible for a U-visa, a form
of hardship relief available to a person convicted of an
aggravated felony. We further hold that Cisneros was
prejudiced by the due process violation because it was
plausible that Cisneros would have obtained a U-visa had she
applied for one in 2010, notwithstanding the fact that she had
already been placed in administrative removal proceedings.
We therefore reverse and remand with instructions to dismiss
the indictment and vacate the conviction.

                       I. Background

                   A. Factual Background

    Xochitl Cisneros-Rodriguez is a 32-year-old Mexican
national who was brought to the United States as a child and
has lived here, undocumented, for most of her life. She is
married and has two sons. Her husband and sons are all
United States citizens.

    As a young adult, Cisneros had several encounters with
the criminal justice system. She has been convicted of a
number of California state misdemeanors. She has also been
convicted of felony and misdemeanor fraud.

  In 2006, Cisneros’s car was stolen by a woman named
Monalisa Rodriguez. Cisneros reported the theft, and
         UNITED STATES V. CISNEROS-RODRIGUEZ                 5

Rodriguez was convicted of larceny and served time in
prison. One night in October 2008, after Rodriguez had been
released from prison, she came to Cisneros’s home with a
knife. She called Cisneros a “snitch” and claimed she would
hurt Cisneros’s family if Cisneros did not “pay her back” by
helping her sell methamphetamine. Over the next three
months, until January 2009, Cisneros helped Rodriguez sell
methamphetamine in and around San Jose, California.
Rodriguez repeatedly threatened Cisneros during this period,
hitting her on three separate occasions and telling her that if
she did not cooperate, Rodriguez would hurt members of her
family.

    In January 2009, Cisneros and Rodriguez were arrested
and charged with possession of methamphetamine for sale.
The two women were both incarcerated at the Elmwood
Correctional Facility in Santa Clara County. While
incarcerated, Rodriguez repeatedly threatened Cisneros with
violence, both to extort money and to dissuade her from
testifying against Rodriguez. Approximately a week after the
arrest, Rodriguez instructed Cisneros to call her mother and
tell her to wire $300 to Rodriguez’s prison commissary
account. If Cisneros did not do so, Rodriguez said, Cisneros
would get “beat up.” When Cisneros’s mother did not send
the money, Rodriguez took Cisneros to a bathroom in the
prison and assaulted her. Cisneros’s mother then sent the
money. Rodriguez then demanded that she send an additional
$300.

    In February, the jail staff moved Cisneros into another
dormitory in the jail, and later moved her into protective
custody. Rodriguez continued to harass Cisneros, sending her
threatening notes through other inmates. One note instructed
Cisneros to “keep saying the dope was yours in court.”
6        UNITED STATES V. CISNEROS-RODRIGUEZ

Another instructed her to tell her mother to send additional
money, adding, “Or do I need some one [sic] to go see your
brother?” The harassment continued into the fall. In
September, jail staff observed inmates “striking [Cisneros] in
the head multiple times with both fists.” A report from that
incident states that Cisneros suffered “multiple contusion[s]
[to the] back of [her] head.” When shown a photograph of
Rodriguez by an investigator, Cisneros said, unprompted,
“Oh my god, she scares me.” She said that Rodriguez made
her “go through hell.”

     Around May 2009, as a result of reports by Cisneros and
her mother, the Santa Clara County Sheriff’s Office referred
the case to the District Attorney. In December 2009,
Cisneros testified at a preliminary hearing on extortion and
other criminal charges brought against Rodriguez. The other
witnesses at the hearing were Cisneros’s mother and an
investigating officer. At the close of the hearing, the judge
found probable cause to issue an information charging
Rodriguez with one felony count of extortion, one felony
count of dissuading a witness by use of force, and one count
of misdemeanor battery. Cisneros was listed as the victim of
all three crimes. In February 2010, Rodriguez entered a plea
of nolo contendere to the charges and was sentenced to a year
in prison, in addition to any sentence imposed on the
methamphetamine charges.

   Cisneros ultimately pled guilty to two counts of
possessing a controlled substance for sale in violation of
California Health and Safety Code § 11378, arising out of the
January 2009 arrest and a prior arrest in November 2008. She
was sentenced to one year of incarceration for each count.
         UNITED STATES V. CISNEROS-RODRIGUEZ               7

               B. Immigration Proceedings

    On January 20, 2009, the day after she and Rodriguez
were arrested, Cisneros was referred to ICE. She was
interviewed at the Elmwood Correctional Facility by ICE
Agent Steven Contreras. Contreras recorded on a form that
Cisneros had been born in Mexico; that she had entered the
United States without inspection; and that she was married.
In October 2009, after Cisneros had pled guilty to violating
California narcotics laws, ICE Agent Jose Linares reopened
her file in order to prepare for removal proceedings. He
recommended that ICE place Cisneros into administrative
removal proceedings. Administrative removal proceedings
are conducted by ICE agents rather than Immigration Judges.

    On May 20, 2010, Cisneros was transferred to an ICE
facility, where she was placed in an administrative removal
proceeding conducted by Agent Linares. Part of what
occurred on May 20 is disputed. Specifically, the parties
dispute what Linares told Cisneros about her right to hire an
attorney and whether he told her that an attorney would not
help her. But the following facts are undisputed. Linares
served Cisneros with an arrest warrant and a Notice of Intent
to Issue a Final Administrative Removal Order. Cisneros
signed the notice, admitting the charge of removability and
waiving her right to contest it. She then signed a form
admitting to having entered the United States unlawfully in
1994 and waiving her right to an attorney. Linares testified
that the entire proceedings likely took somewhere between
ten and fifteen minutes. Cisneros testified that the
proceedings took about ten minutes.

   Cisneros was removed to Mexico on the following day
pursuant to a final administrative order of removal.
8        UNITED STATES V. CISNEROS-RODRIGUEZ

               C. District Court Proceedings

    Cisneros returned to the United States without permission
sometime in 2011. She was arrested in October 2011 and
criminally charged with illegal reentry in violation of
8 U.S.C. § 1326. In December 2011, represented by counsel,
Cisneros filed an application with U.S. Citizenship and
Immigration Services (“USCIS”) for a U-visa, a form of
hardship relief available to victims of crimes who have
suffered mental or physical abuse and are helpful to law
enforcement officials in prosecuting or investigating the
crime. See Victims of Trafficking and Violence Protection
Act of 2000, Pub. L. No. 106-386, § 1513, 114 Stat. 1464,
1533. As part of her application, Cisneros was required to
obtain certification from a law enforcement officer that she
had assisted in prosecuting a qualifying crime. A detective
from the Santa Clara County Sheriff’s Office certified that
Cisneros had assisted in prosecuting Rodriguez for extortion.

    In district court, Cisneros moved to dismiss the
indictment on the ground that her due process rights had been
violated in the administrative removal proceeding on May 20,
2010. She argued that her waivers of her rights to appeal and
to counsel had not been “knowing and voluntary” because
Agent Linares had not followed ICE procedures and had
affirmatively misadvised her about her right to counsel and
about the help an attorney could have provided. The district
judge noted that he generally resolved motions to dismiss an
indictment in a § 1326 case “on the basis of affidavits,” but
that in this circumstance he would hold an evidentiary
hearing. In the hearing that followed, Cisneros and Linares
testified about the circumstances of Cisneros’s removal.
         UNITED STATES V. CISNEROS-RODRIGUEZ                   9

    Cisneros testified that on May 20 Agent Linares had
instructed her to sign forms without indicating to her what
they were. According to Cisneros, when Linares handed her
the notice on which she admitted her removability, he had
folded over the first page which contained the charge itself,
and he had pre-checked the boxes admitting the charge and
waiving her right to contest it. She testified that Linares did
not translate the charges or allegations into Spanish, and that
he did not tell her she had the right to rebut or contest the
allegations or to appeal his decision. She also testified that,
had he told her these things, she would have contested her
removal. She testified that Linares had told her “that if I
wanted to leave in the plane that was about to leave that I
would have to sign this [notice].” She described Linares’s
tone as “Just harsh. Quick. Rude.”

    Cisneros testified that Agent Linares had affirmatively
misadvised her about whether she could speak to an attorney,
and about whether an attorney would help her. ICE is
required by regulation to provide aliens in removal
proceedings with a list of free legal services. See 8 C.F.R.
§ 238.1(b)(2)(iv). She testified that she was “certain” that
Linares had not provided her with such a list. Cisneros
further testified that Linares did not tell her that she had a
right to hire an attorney and told her that because she “had big
charges” she “could not see a judge.” In her affidavit filed in
the district court, Cisneros testified that Linares told her that
“a lawyer would not help me, so I did not ask for an
attorney.”

    Cisneros testified on direct examination that she had told
Agent Linares during the May 20 interview that she “had an
extortion case in which I had been a victim.” On cross
examination, however, the government sought clarification
10       UNITED STATES V. CISNEROS-RODRIGUEZ

because Cisneros’s written declaration seemed to indicate that
she had not told Linares about her extortion case. Cisneros
clarified that she had mentioned her extortion case to
someone other than Linares:

       Q: So going back to your declaration, it states
       that you explained to an officer, and the way
       the declaration is written, it appears to be
       someone other than Agent Linares. You
       explained that you had an extortion case.

       A: Okay. That question that you asked . . . ,
       when I was looking at the immigration people
       that were present, I remember that he
       interviewed me in January, but it was — well,
       it was another person who came when I was
       already under protection. It wasn’t the same
       person.

Cisneros testified further that she had mentioned her extortion
case to someone other than Contreras.

       Q: So it was not either of the two gentleman
       [sic] you saw [in court] on Thursday [Agent
       Linares or Agent Contreras]?

       A. The first one was — I don’t remember, his
       name is like Contreras. All right. He went to
       see me when I was already in the dorms, but
       it wasn’t him I said to — well, that I speak
       about the fact that I had a problem with
       extortion.

       Q: Okay.
         UNITED STATES V. CISNEROS-RODRIGUEZ                11

    Agent Linares testified that he had no recollection of what
happened on May 20. He conceded that he had no memory
of Cisneros and no memory of her removal proceeding.
Linares was asked, “Do you recognize her?” He answered,
“No.” Linares was then asked, “Do you have any personal
memory of her?” He again answered, “No.” Linares was
finally asked, “[Y]ou have no personal memory of these
proceedings . . . ?” He answered, “No, no.” Linares said that
it was “difficult for [him] to remember each particular case”
because he “process[es] so many.”

    Agent Linares testified as to what he “would ordinarily
have done” in conducting an administrative removal
proceeding. He testified that his ordinary practice is to read
the allegations and charge to the alien; that he ordinarily
explains everything on the notice to the alien, including that
the alien has a right to an attorney; and that he believed,
based on his ordinary practice, that he would have provided
Cisneros with a list of free legal service providers. Linares
further testified, again based on what he described as his
ordinary practice, that because Cisneros spoke Spanish, he
would have conducted the removal proceedings in Spanish.
On cross-examination, Linares admitted that, although he had
testified to what he described as his “ordinary practice,”
Cisneros’s administrative removal proceeding had been only
the “second or third” such proceeding he had ever conducted.
Linares also admitted that when he conducted Cisneros’s
administrative removal proceeding, he had recently been
disciplined and demoted to the position in which he
conducted administrative removal hearings.

    The district judge issued a written order denying
Cisneros’s motion to dismiss the indictment. The judge
identified the key question as whether Cisneros’s due process
12       UNITED STATES V. CISNEROS-RODRIGUEZ

rights had been violated during her administrative removal
proceedings, a question as to which he wrote that “the
testimony is in conflict.” The judge wrote that “[a]s Linares
testified that it is his habit to provide all aliens he processes
with a list of attorneys, the Court finds it unlikely that none
of the aliens being processed at this time were so provided.”
However, at the same time, the judge “acknowledge[d] that
evidence of disciplinary action taken against Linares by ICE
was introduced as impeachment during cross-examination.”
The judge wrote that “Cisneros Rodriguez’[s] testimony
about her desire to have counsel was inconsistent at best.”
But the district court made no adverse credibility finding as
to either Cisneros or Linares.

    With respect to whether Cisneros told Linares about her
extortion case and the possibility of a U-visa, the district
judge wrote, “The Court finds that there is no credible
evidence in the record that defendant told Linares that she
wanted to see a lawyer or an immigration judge because she
thought she had the basis for an application for a U-Visa, or
even that she had been a victim of extortion.” He wrote, a
few pages later, “[T]here is nothing at all in the record to
suggest that in their meeting Cisneros Rodriguez told Linares
about the extortion case, or her desire to file for a U Visa.”
The judge explained the basis for these statements, pointing
out that Cisneros herself had testified on cross examination,
when the government sought clarification of her testimony,
that she had told neither Linares nor Contreras of her
extortion case or any wish to apply for a U-visa.

    The district judge found that “[Cisneros] and Linares had
a discussion about counsel.” But the important question, he
explained, was “whether in these discussions Linares
provided [Cisneros] with information which was inaccurate
         UNITED STATES V. CISNEROS-RODRIGUEZ               13

or misleading and which therefore interfered with her right to
counsel.” With respect to this question, he concluded that
“based on the information available to Linares about Cisneros
Rodriguez’[s] criminal record, assuming arguendo, Linares
did tell Cisneros Rodriguez that a lawyer could not help her,
the Court finds that, as a factual matter, Linares did not
mislead [Cisneros].” That is, the district court reasoned that
even “assuming arguendo” that Agent Linares told Cisneros
that an attorney would be of no use, as Cisneros testified,
there was no due process violation because Linares’s advice
was correct.

    Based on his conclusion that there had been no due
process violation, the district judge denied Cisneros’s motion
to dismiss the indictment. After a bench trial, Cisneros was
convicted of violating 8 U.S.C. § 1326, and was sentenced to
30 months in prison.

    Cisneros appealed the denial of her motion to dismiss the
indictment. After she was convicted and while her appeal
was pending, her application for a U-visa was denied.

                  II. Standard of Review

    We review the district court’s denial of a motion to
dismiss an indictment brought pursuant to 8 U.S.C. § 1326(d)
de novo. United States v. Reyes-Bonilla, 671 F.3d 1036, 1042
(9th Cir. 2012). We review the district court’s findings of
fact for clear error. Id.

                       III. Discussion

   “To convict an alien criminal defendant of illegal reentry
under 8 U.S.C. § 1326, the government must prove that the
14        UNITED STATES V. CISNEROS-RODRIGUEZ

alien left the United States under order of exclusion,
deportation, or removal, and then illegally reentered.” United
States v. Barajas-Alvarado, 655 F.3d 1077, 1079 (9th Cir.
2011) (internal footnote omitted). An alien charged with
illegal reentry under § 1326 “has a Fifth Amendment right to
collaterally attack [her] removal order because the removal
order serves as a predicate element of [her] conviction.”
United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th
Cir. 2004); see also United States v. Mendoza-Lopez,
481 U.S. 828, 837–38 (1987). That right is codified at
8 U.S.C. § 1326(d).

     To mount a collateral attack under § 1326(d),

        a defendant must, within constitutional
        limitations, demonstrate (1) that [she]
        exhausted all administrative remedies
        available to [her] to appeal [her] removal
        order, (2) that the underlying removal
        proceedings at which the order was issued
        improperly deprived [her] of the opportunity
        for judicial review, and (3) that the entry of
        the order was fundamentally unfair.

Ubaldo-Figueroa, 364 F.3d at 1048; see 8 U.S.C. § 1326(d).

    The parties agree that the third question, whether the entry
of Cisneros’s removal order was “fundamentally unfair,” is
dispositive here. See United States v. Gomez, 757 F.3d 885,
892 (9th Cir. 2014) (noting that “[a] defendant can establish
the first two prongs of § 1326(d) by showing that he was
denied judicial review of his removal proceeding in violation
of due process”); Ubaldo-Figueroa, 364 F.3d at 1049–50 (to
similar effect). An underlying order is “fundamentally
         UNITED STATES V. CISNEROS-RODRIGUEZ                15

unfair” if (1) a defendant’s due process rights were violated
by defects in her underlying deportation proceeding, and
(2) she suffered prejudice as a result of the defects. Ubaldo-
Figueroa, 364 F.3d at 1048. If Cisneros’s final order of
removal was entered in violation of her due process rights,
and if she suffered prejudice as a result, she is deemed to
have “exhausted all administrative remedies available to
[her]” and to have been “deprived . . . of the opportunity for
judicial review.” See id. at 1048. For the following reasons,
we hold that the entry of the order was fundamentally unfair.

                 A. Due Process Violation

    The district judge wrote that he was willing to assume that
Cisneros testified truthfully when she said that Agent Linares
advised her that an attorney could not help her. Cisneros
argues that Linares’s advice violated her due process rights,
on the ground that he thereby improperly obtained an invalid
waiver of her right to counsel. We agree.

    “Although there is no Sixth Amendment right to counsel
in an immigration hearing, Congress has recognized it among
the rights stemming from the Fifth Amendment guarantee of
due process that adhere to individuals that are the subject of
removal proceedings.” Tawadrus v. Ashcroft, 364 F.3d 1099,
1103 (9th Cir. 2004). This right extends to administrative
removal proceedings. Indeed, ICE is required by statute to
inform aliens placed in administrative proceedings of their
right to counsel. See 8 U.S.C. § 1228(b)(4)(B) (“[T]he alien
shall have the privilege of being represented (at no expense
to the government) by such counsel, authorized to practice in
such proceedings, as the alien shall choose.”); 8 C.F.R.
§ 238.1(b)(2)(i) (“[The Notice of Intent] shall advise that the
16       UNITED STATES V. CISNEROS-RODRIGUEZ

alien: has the privilege of being represented, at no expense to
the government, by counsel of the alien’s choosing . . . .”).

    A waiver of counsel must be “knowing and voluntary.”
See United States v. Ramos, 623 F.3d 672, 682 (9th Cir.
2010). Improperly obtaining such a waiver constitutes a due
process violation. Id.; see also Reyes-Bonilla, 671 F.3d at
1045–46. “The government bears the burden of proving valid
waiver in a collateral attack of the underlying removal
proceedings.” Ramos, 623 F.3d at 680. We “indulge every
reasonable presumption against waiver” and do not “presume
acquiescence in the loss of fundamental rights . . . , especially
where an uncounseled individual purportedly waived” her
right to counsel. Gomez, 757 F.3d at 894 (internal citations
and quotation marks omitted).

    The Record of Sworn Statement form that Cisneros
signed on May 20 stated that she had “the right to consult
with an attorney.” The second question on the form asks,
“Are you willing to waive these rights and talk with me?”
“Sí” (“yes”) is written on the form in answer to that question.
But Cisneros testified that, before she gave this answer,
Linares had dissuaded her from hiring an attorney.
Specifically, she testified that Linares told her that an
attorney “would not help [her].” She testified further that,
had Linares not dissuaded her from exercising her right to
counsel, she would have hired an attorney.

    A waiver of fundamental rights, we have repeatedly held,
“must be considered and intelligent.” Gomez, 757 F.3d at
893 (internal quotation marks omitted); see also Reyes-
Bonilla, 671 F.3d at 1043; Ramos, 623 F.3d at 680. It is
difficult to comprehend how an unrepresented alien could
execute a “considered and intelligent” waiver of her right to
          UNITED STATES V. CISNEROS-RODRIGUEZ                  17

counsel if she has been informed by an ICE agent, just prior
to executing the waiver, that the exercise of that right would
be futile.

    The district judge did not make a factual finding that
Agent Linares had told Cisneros that an attorney could not
help her. Instead, he simply assumed that Linares had done
so. The judge nonetheless held that there had been no due
process violation because, he wrote, “as a factual matter,
Linares did not mislead [Cisneros].” In the district judge’s
view, that is, Linares’s statement that an attorney could not
help her was accurate. However, as we explain below,
Linares’s advice was not accurate, and had the effect of
misleading Cisneros. We hold that if an ICE agent
erroneously advises an uncounseled alien in an administrative
removal proceeding that an attorney will not be able to
provide assistance, any waiver of the right to counsel based
on that advice is invalid because it is not “considered and
intelligent.”

     Because the district judge was mistaken when he
concluded that Agent Linares’s advice was correct, a critical
question becomes whether, in fact, Linares advised Cisneros
that an attorney could not help her. The district judge
assumed that Linares had so advised Cisneros but he made no
factual finding to that effect. We would ordinarily remand to
the district court to allow the district judge who heard the live
testimony to do factfinding. In this case, however, we think
it appropriate to decide the factual issue ourselves.

   The district judge who decided this case has retired. If we
were to remand to the district court for factfinding, the district
judge assigned the case on remand would be in no better
position than we are to decide the factual question. That
18       UNITED STATES V. CISNEROS-RODRIGUEZ

judge would read the transcript, as we can, and would not be
able, any more than we are able, to judge the credibility of
Cisneros based on personal observation. It is possible, of
course, that the district judge assigned the case on remand
would elect to rehear the testimony taken by the first judge.
But given that Cisneros has now been removed and is
currently in Mexico, the likelihood that the new judge would
conduct a hearing at which the key witnesses, including
Cisneros, would testify is sufficiently remote that we are
unwilling to remand based on an assumption that the new
judge would do so.

    Cisneros testified that Agent Linares told her that an
attorney “would not help [her].” Linares could not directly
contradict Cisneros because, as he testified, he had no
recollection of her or her proceeding. He testified about his
ordinary practice, and testified that his practice was to explain
to aliens in such proceedings that they have the right to
counsel. But Linares’s testimony was suspect. He admitted
that Cisneros’s removal was only the “second or third”
administrative removal proceeding he had ever conducted.
Further, on cross-examination he conceded that he was
conducting administrative removal proceedings in San Jose
as a result of having been demoted from his previous position
as ICE Chief of Detention in San Francisco. He had been
demoted because, contrary to ICE regulations, he had kept in
a safe in his office between 260 and 300 bags of aliens’
personal possessions, and because he had made false
accusations against, and derogatory and discriminatory
statements about, a fellow ICE employee. As a result of the
false accusations and the statements, ICE had been obliged to
pay $50,000 to the affected employee. Linares’s termination
had been proposed during the disciplinary process, but in the
end he was only demoted and transferred.
          UNITED STATES V. CISNEROS-RODRIGUEZ                  19

    Cisneros testified consistently that she had wanted an
attorney. She stated that she was “certain” that she had not
been provided with a list of attorneys. And she testified
without ambiguity or hesitation that Linares had advised her
that an attorney could not help her. While she was halting
and uncertain regarding whether and when she told the ICE
agents that she had been the victim of extortion, she was
consistent in her statements that she had intended to retain an
attorney until Linares told her that an attorney could not help.

    Our dissenting colleague concludes that the district judge
made an implicit credibility finding, and found that Cisneros
testified falsely on the key question in the case. She writes,
“[R]eading the opinion as a whole, the district court found
Cisneros incredible regarding what Linares told her about
counsel.” Our colleague bases her conclusion on two
statements by the district judge. First, she points out that the
judge wrote that there was “no credible evidence in the record
that [Cisneros] told Linares . . . that she had been a victim of
extortion.” We agree with this statement by the district
judge, but it does not amount to an explicit, or even an
implicit, credibility finding. As the district judge recognized
in explaining the statement, Cisneros herself testified that she
had not told Linares (or Contreras, for that matter) that she
had been a victim of extortion. Second, our dissenting
colleague points out that the judge found it “unlikely that
none of the aliens being processed at this time were . . .
provided [with lists of counsel].” We are willing to agree
with this statement by the district judge, too, but it is not, any
more than the first statement, an adverse credibility finding
“regarding what Linares told [Cisneros].” The judge referred
to the likelihood that none of the aliens was provided with
counsel lists; the court found that “unlikely.” Even if that had
been the question before the court, the most the judge found
20       UNITED STATES V. CISNEROS-RODRIGUEZ

was it was “unlikely” that Linares never provided a counsel
list to any alien. But that was not a question before the court.
The question was whether a particular alien — Cisneros —
had been provided with such a list, and whether Linares had
told her that an attorney could not help her.

   Based on our independent review of the record, we
conclude that Agent Linares told Cisneros that an attorney
would not help her and thereby persuaded Cisneros to waive
her right to obtain an attorney. We therefore hold that
Linares obtained an invalid waiver of Cisneros’s right to
counsel, in violation of her due process rights.

                         B. Prejudice

    That Cisneros’s Fifth Amendment due process rights were
violated does not end the inquiry. In order to show that her
administrative removal proceeding was “fundamentally
unfair,” she must show that she was prejudiced by the
violation. See Ubaldo-Figueroa, 364 F.3d at 1048. Cisneros
contends that she was prejudiced by the due process violation
because, had she obtained counsel, it is plausible that she
would have applied for and obtained a U-visa, a temporary
visa available to certain crime victims. See 8 U.S.C.
§ 1101(a)(15)(U). The government concedes that Cisneros
was facially eligible for a U-visa in 2010. But it argues that
Cisneros nonetheless could not have been prejudiced by a due
process violation. First, the government argues that Cisneros
was statutorily barred from applying for any form of relief,
including a U-visa, because she had been put in
administrative removal proceedings. Second, the government
argues that, even if Cisneros was not barred by statute, it is
not plausible that she would have obtained a U-visa had she
applied for one in 2010. We disagree with both arguments.
         UNITED STATES V. CISNEROS-RODRIGUEZ                 21

                       1. Statutory Bar

    The general rule is that a defendant who has been
convicted of an aggravated felony “cannot show that [s]he
was prejudiced by defects in [her] underlying [removal]
proceedings . . . because noncitizens convicted of aggravated
felonies are . . . ineligible for almost all forms of
discretionary relief.” United States v. Alvarado-Pineda,
774 F.3d 1198, 1201 (9th Cir. 2014) (internal citations
omitted). Cisneros, however, argues that she falls within an
exception to the rule. Cisneros argues that she was eligible
for a U-visa, a form of relief available to victims of certain
qualifying crimes who have suffered mental or physical abuse
and assist in the prosecution or investigation of the crime.
See id. at 1201–02; see also Victims of Trafficking and
Violence Protection Act of 2000, Pub. L. No. 106-386,
§ 1513, 114 Stat. 1464, 1533. Conviction for an aggravated
felony does not necessarily disqualify an applicant from
obtaining a U-visa. An applicant for a U-visa may apply to
waive grounds that would ordinarily bar her admission to the
United States, including certain criminal convictions.
8 U.S.C. § 1182(d)(14).

    An applicant for a U-visa must demonstrate that (1) she
has suffered “substantial physical or mental abuse” in
connection with a qualifying crime; (2) she possesses
information concerning the crime; (3) she “has been helpful,
is being helpful, or is likely to be helpful” to an official who
is investigating or prosecuting the crime; and (4) the
qualifying crime violated federal or state law. See 8 U.S.C.
§ 1101(a)(15)(U)(i). A U-visa applicant must obtain a
certification from a law enforcement official in order to
qualify for the visa. 8 C.F.R. § 214.14(c)(2)(i). It is
undisputed that Cisneros met these criteria. She was the
22       UNITED STATES V. CISNEROS-RODRIGUEZ

victim of extortion, a qualifying crime; she had suffered
abuse in connection with the crime; and, as the certification
she received from the Santa Clara County Sheriff’s Office
attests, she had rendered substantial assistance in the
prosecution of the crime’s perpetrator, Rodriguez. The
government nonetheless argues that, as a statutory matter,
Cisneros was not eligible to obtain a U-visa, and therefore
could not have been prejudiced by any due process violations.

    Under 8 U.S.C. § 1228, the government may place an
undocumented alien convicted of an aggravated felony either
into removal proceedings before an Immigration Judge or into
administrative removal proceedings before an ICE agent. See
8 U.S.C. § 1228(b)(1). The governing regulations explicitly
state that an ICE agent shall place an undocumented alien in
administrative removal proceedings, rather than removal
proceedings before an Immigration Judge, only if he is
“satisfied that there is sufficient evidence” that the alien is
eligible to be placed in these proceedings. 8 C.F.R.
§ 238.1(b)(1). The regulations further permit an ICE agent to
transfer an undocumented alien to removal proceedings
before an Immigration Judge if the agent “finds that the alien
is not amenable to removal” by administrative removal
proceedings. Id. § 238.1(d)(2)(iii). Agent Linares testified
before the district court, consistent with these regulations,
that he had the authority to determine, subject to his
supervisors’ approval, whether Cisneros would be placed and
kept in administrative removal proceedings or transferred to
removal proceedings before an Immigration Judge.

    The government argues that, once Agent Linares decided
to place Cisneros in administrative proceedings rather than
proceedings before an Immigration Judge, her right to apply
for a U-visa was irrevocably extinguished. The government
         UNITED STATES V. CISNEROS-RODRIGUEZ                23

relies on 8 U.S.C. § 1228(b)(5), which provides that an
undocumented alien placed in administrative removal
proceedings will not “be eligible for any relief from removal
that the Attorney General may grant in the Attorney
General’s discretion.” 8 U.S.C. § 1228(b)(5). The fatal
weakness of the government’s argument is that an ICE agent
can take an undocumented alien already put in administrative
removal proceedings out of those proceedings and put her
into removal proceedings before an Immigration Judge.
Indeed, the regulations explicitly provide that authority, and
Agent Linares conceded in his testimony in the district court
that he could have exercised it.              See 8 C.F.R.
§ 238.1(d)(2)(iii). Therefore, while an undocumented alien
placed into administrative removal proceedings may be
barred from applying for discretionary relief during those
proceedings, the bar is contingent on the agent’s decision to
place and keep her in those proceedings.

    Our prior opinions in United States v. Calderon-Segura,
512 F.3d 1104 (9th Cir. 2008), and United States v. Garcia-
Martinez, 228 F.3d 956 (9th Cir. 2000), are not to the
contrary. In those cases, we noted that undocumented aliens
convicted of aggravated felonies could not have been
prejudiced by due process violations because under
§ 1228(b)(5) they were “statutorily ineligible for any
discretionary relief.” Calderon-Segura, 512 F.3d at 1108; see
also Garcia-Martinez, 228 F.3d at 964. But neither defendant
identified a form of relief, like the U-visa, that he plausibly
could have obtained had he been placed or transferred into
proceedings before an Immigration Judge. By contrast, in
United States v. Reyes-Bonilla, we engaged in an extensive
analysis of whether it was plausible that the defendant would
have obtained deferral of removal under the Convention
Against Torture, one of the few other forms of relief available
24       UNITED STATES V. CISNEROS-RODRIGUEZ

to an undocumented alien convicted of an aggravated felony.
See 671 F.3d at 1050–52. We did not treat the fact that the
defendant had been placed into administrative proceedings as
a bar to all relief from removal, notwithstanding the text of
§ 1228(b)(5). We instead asked the same question we ask
today: whether the defendant had identified a form of relief
it was plausible he would have obtained absent the due
process violation. In many cases, such as in Calderon-Segura
and Garcia-Martinez, the answer will be “no.” But the
reason for that answer is not that the defendant has been
placed into administrative removal proceedings.

    We therefore reject the government’s argument that
§ 1228(b)(5) operates as an absolute bar to a undocumented
alien placed in administrative removal proceedings. We hold,
instead, that an undocumented alien attacking an
administrative removal order may argue that a due process
violation that occurred during her removal proceedings was
prejudicial if (a) she identifies a form of relief for which she
was eligible to apply, notwithstanding her aggravated felony
conviction, and (b) she establishes that it was “plausible” that,
but for the due process violation, she would have been
permitted to apply for, and would have obtained, such relief.
Such a situation is rare, but § 1228(b)(5) does not foreclose
the possibility of relief.

                        2. Plausibility

    To succeed in demonstrating that her 2010 removal order
was fundamentally unfair, Cisneros must show that she was
prejudiced by the due process violations in the underlying
removal proceedings. To do so, Cisneros “does not have to
show that [she] actually would have been granted relief.”
Ubaldo-Figueroa, 364 F.3d at 1050. “Instead, [she] must
          UNITED STATES V. CISNEROS-RODRIGUEZ                   25

only show that [she] had a ‘plausible’ ground for relief from
deportation.” Id. (quoting United States v. Arrieta, 224 F.3d
1076, 1079 (9th Cir. 2000)). “[E]stablishing ‘plausibility’
requires more than establishing a mere ‘possibility.’”
Barajas-Alvarado, 655 F.3d at 1089. But Cisneros “need not
prove that relief was probable.” United States v. Raya-Vaca,
771 F.3d 1195, 1207 (9th Cir. 2014) (emphasis added). That
is, Cisneros needs to show that relief was more than
“possible,” but she need not show that it was “probable.”

    Here, Cisneros must show that, but for the due process
violation, it is both “plausible” that she would have been
permitted to apply for a U-visa in 2010 and “plausible” that
she would have obtained one had she applied. We conclude
that she has made both showings.

     First, we have little trouble concluding it is plausible that,
had Agent Linares not told Cisneros that a lawyer would not
help her, she would have been able to apply for a U-visa. The
government does not dispute that Cisneros would have been
able to apply for a U-visa had she not been placed into
administrative proceedings. And Linares conceded that, had
he known Cisneros was eligible for a U-visa, he would have
so informed his supervisors. We have no doubt, as the
district court concluded, that Linares did not know that
Cisneros was facially eligible for a U-visa. We also have no
doubt that a competent lawyer would have discovered that
she was eligible for one, would have informed ICE, and
would thereby have prevented Cisneros’s immediate removal
from the United States. Indeed, a formal Department of
Homeland Security (“DHS”) policy memorandum states that
it is DHS’s policy to stay the proceedings and removal of an
alien who is facially eligible for a U-visa, even after he or she
has been issued a final order of removal. See Memorandum
26       UNITED STATES V. CISNEROS-RODRIGUEZ

from Peter S. Vincent, Principal Legal Advisor, U.S.
Immigration & Customs Enforcement to the Office of the
Principal Legal Advisor (Sept. 25, 2009), available at
http://1.usa.gov/1GqVkYK. Had Cisneros been granted a U-
visa subsequent to the issuance of the removal order, the
removal order would have been canceled. See 8 C.F.R.
§ 214.14(c)(5)(i).

    Second, although this is a closer question, we conclude
that it is plausible that Cisneros would have obtained a U-visa
had she applied for one in 2010. According to data compiled
by DHS, USCIS ultimately grants over 70 percent of U-visa
applications. See Number of I-918 Petitions for U
Nonimmigrant Status (Victims of Certain Criminal Activities
and Family Members) by Fiscal Year, Quarter, and Case
Status 2009–2015, U.S. Citizenship & Immigration Serv.,
available at http://1.usa.gov/18LyQG3. Though “statistics
alone cannot establish the plausibility of relief,” Raya-Vaca,
771 F.3d at 1209, the data provides a reasonable baseline
against which to assess the plausibility of relief in Cisneros’s
individual case.

    Measured against that baseline, we find it plausible that
Cisneros would have obtained a U-visa in 2010. It is true that
Cisneros had a substantial criminal record. Although the
record is not entirely clear, it appears she was convicted of a
variety of state misdemeanors and felonies. But until the fall
of 2008, when she became involved with Rodriguez, Cisneros
had never been involved in any drug-related crime and had
never been sentenced to more than nine months in county jail.
Further, there were significant reasons why Cisneros might
have warranted a favorable exercise of discretion. She had
lived most of her life in the United States; she was married to
a U.S. citizen; and she was raising two U.S. citizen children.
          UNITED STATES V. CISNEROS-RODRIGUEZ                  27

    Cisneros had also been a critical witness in the
prosecution of Rodriguez for extortion. The government
argues to us that Rodriguez’s crime was relatively minor, and
that Cisneros’s role in assisting the Santa Clara County
Sheriff’s Office was not substantial. To some extent, the
government is making a counterfactual argument, for
Cisneros was both the victim of, and the primary witness
against, Rodriguez. Further, we see nothing in the text or
history of the Victims of Trafficking and Violence Protection
Act that would support the government’s limited reading of
the purpose and availability of U-visas. Congress’s purpose
in establishing the U-visa was to protect “[a]ll women and
children who are victims of [qualifying] crimes,” not merely
those who have information or assistance to provide
regarding high-profile crimes. See Pub. L. No. 106-386,
§ 1513(a)(1)(B), 114 Stat. 1464, 1533 (2000) (emphasis
added). Congress also intended to “strengthen the ability of
law enforcement agencies to detect, investigate, and
prosecute” all qualifying crimes, not merely those crimes that
the government might conclude in retrospect, and in the
context of later litigation, are significant. Id. § 1513(a)(2)(A).

    Finally, we do not accord significant weight to the fact
that Cisneros later applied for a U-visa and was rejected.
Like the petitioner in Torres-Tristan v. Holder, 656 F.3d 653,
655 (7th Cir. 2011), upon which the government relies,
Cisneros applied for a U-visa only after she had already
violated 8 U.S.C. § 1326 by re-entering the United States.
See id. at 655. The fact that USCIS rejected her application
after she had been criminally convicted in 2013 of illegal
reentry has little bearing on whether she would have been
successful had she applied for a U-visa in 2010, before she
had been ordered removed and before her subsequent re-
entry.
28       UNITED STATES V. CISNEROS-RODRIGUEZ

   We conclude that had Cisneros applied for a U-visa in
2010, it was plausible that she would have obtained one.

                         Conclusion

    Based on the foregoing, we conclude that the entry of
Cisneros’s administrative removal order in 2010 was
“fundamentally unfair.” We hold that Cisneros’s due process
rights were violated when Agent Linares told her that an
attorney would not help her. We also hold that Cisneros was
prejudiced by the violation because, in its absence, it was
plausible that she would have been transferred from
administrative removal proceedings to removal proceedings
before an immigration judge, and that she would then have
sought and obtained a U-visa. We therefore reverse and
remand with instructions to dismiss Cisneros’s indictment
and vacate her conviction.

   REVERSED and REMANDED with directions.
Cisneros’s motion to supplement the record on appeal is
denied as moot.



SILVER, District Judge, dissenting:

    Having fully evaluated the many statutes, regulations, and
policies at issue, as well as the record and opinion of the
district court, I regrettably must dissent from the majority.

    I find the district court did make credibility findings and
determined Cisneros was not credible. Under the applicable
standard of review, deference is required. Also, I believe the
law governing administrative removal proceedings would
         UNITED STATES V. CISNEROS-RODRIGUEZ                 29

have prevented Cisneros from staying, vacating, or
converting the proceedings. Finally, although I agree that
with assistance of counsel, Cisneros theoretically could have
petitioned for and received a decision regarding a U-visa
prior to her removal from the United States, I disagree that
Cisneros has carried the burden to establish she plausibly
would have been granted a U-visa. Accordingly, I dissent.

                       I. Due Process

    On the issue of due process, the majority concludes the
“critical question” is whether “Linares advised Cisneros that
an attorney could not help her” and that the district court did
not decide this question. However, reading the entirety of the
district court opinion in context, I find the district court did
decide this question and, based on the record before this
court, that determination is entitled to strong deference.
Alternatively, even if the district court did not decide this
question, this court is required to remand for resolution of all
underlying factual issues.

   A. The District Court’s Factual Findings

    All parties concede the district court made factual
findings regarding Cisneros’s right to counsel. Cisneros’s
opening brief on appeal argues the district court was incorrect
in finding Cisneros was properly advised of her rights. The
reply brief repeats this argument, stating the district court
“credited Agent Linares’ testimony” and relied on “clearly
erroneous factual findings” in concluding Agent Linares
properly advised Cisneros of her rights. The government’s
brief also claims the district court made factual findings
regarding Cisneros’s right to counsel.
30       UNITED STATES V. CISNEROS-RODRIGUEZ

    I agree the district court did not explicitly and expressly
reject Cisneros’s testimony that Linares affirmatively
dissuaded her from obtaining an attorney. But reading the
opinion as a whole, the district court found Cisneros
incredible regarding what Linares told her about counsel.
Assuming the district court’s factual findings were only
implicit rather than explicit, with both parties agreeing factual
findings were made, this court is required to review those
findings under the normal standard of review: clear error. See
United States v. Kinsman, 540 F.2d 1017, 1019 (9th Cir.
1976), withdrawn on other grounds, 573 F.2d 3 (9th Cir.
1978) (district court’s implicit factual findings must be
reviewed for clear error). Furthermore, a district court’s
credibility findings are entitled to a high degree of deference.
See Anderson v. City of Bessemer City, N.C., 470 U.S. 564,
575 (1985) (“When findings are based on determinations
regarding the credibility of witnesses, Rule 52(a) demands
even greater deference to the trial court’s findings; for only
the trial judge can be aware of the variations in demeanor and
tone of voice that bear so heavily on the listener’s
understanding of and belief in what is said.”). This deference
precludes an appellate court from substituting a preferred
opinion of the evidence: “[I]f the district court’s findings are
plausible in light of the record viewed in its entirety, [we]
cannot reverse even if [we are] convinced [we] would have
found differently.” United States v. Torlai, 728 F.3d 932, 937
(9th Cir. 2013) (citation omitted).

    The majority’s analysis of the district court’s credibility
findings is contrary to the well-established required deference
in two respects. First, it adopts a rule of construction without
support in law that a district court must credit all or none of
a witness’s testimony. Second, the district court found the
         UNITED STATES V. CISNEROS-RODRIGUEZ                  31

portions of Cisneros’s testimony regarding the information
she received about her right to counsel explicitly not credible.

    The record shows at one point, Cisneros testified she told
Linares she had been the victim of extortion. But the district
court remarked there was “no credible evidence in the record
that [Cisneros] told Linares . . . that she had been a victim of
extortion.” (emphasis added). The district court also rejected
Cisneros’s testimony regarding her right to counsel and held:

        As it relates to the issue of [Cisneros] having
        access to an attorney, the testimony is in
        conflict. Linares testified that at their meeting
        he would have provided [Cisneros] with a list
        of legal counsel. Defendant testified that
        Linares never gave her, or any of the other
        two person [sic] being processed at the same
        time a list of lawyers. As Linares testified that
        it is his habit to provide all aliens he processes
        with a list of attorneys, the Court finds it
        unlikely that none of the aliens being
        processed at this time were so provided. . .
        [FN 3] While the Court makes this finding, it
        also acknowledges that evidence of
        disciplinary action taken against Linares by
        ICE was introduced as impeachment during
        cross-examination.

(emphasis added). Based on the findings cited above, it is
clear the district court did not believe Cisneros was telling the
truth about the actions and statements she alleged Linares
made in connection to Cisneros’s right to counsel. And while
some may disagree with that view of Cisneros’s testimony, it
is a plausible conclusion based on the entire record of the
32       UNITED STATES V. CISNEROS-RODRIGUEZ

hearing. See, e.g., Carrion v. Smith, 549 F.3d 583, 590 (2d
Cir. 2008) (discussing Fed. R. Evid. 406 and affirming
district court reliance on testimony of “established practice”
in making findings of fact).

     B. Alternatively, Remand Is Usually Required to
        Address a Lack of Factual Findings

    Even if we were to decide the district court did not make
an explicit factual finding deemed somehow necessary, an
appellate court is “not in the business of making findings of
fact.” Forest Grove Sch. Dist. v. T.A., 638 F.3d 1234, 1238
(9th Cir. 2011). In fact, according to the Supreme Court,
when a district court has not made the necessary findings of
fact, “the usual rule is that there should be a remand for
further proceedings to permit the trial court to make the
missing findings.” Pullman-Standard v. Swint, 456 U.S. 273,
291–92 (1982). “The only exception to this rule is when the
record permits only one resolution of the factual issue.”
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 387
n.3 (2008). As previously stated, my reading of the record
compels the conclusion that the district court found Cisneros
did not testify truthfully. Therefore, remand rather than
appellate fact finding is the only course.

    The majority offers two reasons for not remanding. First,
the district judge who conducted the evidentiary hearing has
since retired and, second, an appellate court must accept as
true any statement offered by a witness which is not directly
contradicted. The second reason cannot be right, and I am not
aware of any law requiring a district court accept all
testimony as credible. And as for the first reason, the majority
posits the “district judge assigned the case on remand would
be in no better position than we are to decide the factual
           UNITED STATES V. CISNEROS-RODRIGUEZ                        33

question.” That is also an incorrect appellate standard of
review. On remand, a different district judge may opt to take
additional evidence, such as additional testimony from
Cisneros and Linares.1 The district judge on remand may also
seek additional documents which could either support or
undermine Cisneros’s allegations. Simply, credibility is
impossible to judge on appeal—on the paper record. The
demeanor of witnesses is a critical advantage of the district
court judge but not appellate judges. Hernandez v. New York,
500 U.S. 352, 365 (1991) (“As with the state of mind of a
juror, evaluation of the prosecutor’s state of mind based on
demeanor and credibility lies ‘peculiarly within a trial judge’s
province.’”). And of course, it is not unheard of for a case to
be assigned to a new district judge on remand. The fact that
this particular district judge is no longer available to hear the
case cannot support our foray into appellate fact finding.

                            II. Prejudice

   Even assuming Agent Linares told Cisneros an attorney
would not be able to help her, Cisneros has not shown she



 1
   Even though Cisneros has been deported, her counsel must continue to
have contact with her, otherwise this appeal on her behalf would be
improper. See Marrow v. United States, 772 F.2d 525, 530 (9th Cir. 1985)
(citing ABA Standards for Criminal Justice 4-8.2, 21-2.2 (2d ed. 1980))
(“The decision whether to appeal ‘must be the defendant’s own choice’”);
Dep’t of Water & Power of City of Los Angeles v. Anderson, 95 F.2d 577,
580 (9th Cir. 1938) (stating appeal would be dismissed if it appeared
attorneys appearing for appellant had no authority to conduct case for
appellant). And while she may not be able to enter the country to testify,
a district judge may permit her to offer testimony by telephone or
videoconference. Cf. Maryland v. Craig, 497 U.S. 836 (1990) (finding
testimony via one-way video monitor did not violate confrontation clause).
34           UNITED STATES V. CISNEROS-RODRIGUEZ

experienced prejudice from that statement.2 It is not plausible
that, absent this comment by Linares, Cisneros would have
been able to convince ICE to convert her removal from
administrative to non-administrative proceedings. Second, it
is not plausible, had she been able to stay her removal, that
she would have been granted a U-visa and avoided
deportation.

         A. Cisneros Could Not Have Avoided Administrative
            Removal

    Once Cisneros was convicted of aggravated felonies in
June 2009, the Notice for administrative proceedings was
approved in October 2009, and the Notice was served in May
2010, Cisneros’s options for challenging her administrative
removal were, by statute and case law, extremely limited. The
type of relief Cisneros claims she could have sought and the
type of relief the majority holds she might have obtained (i.e.
a U-visa) is implausible. A relatively detailed examination of
administrative removal proceedings proves the point.

    Under 8 U.S.C. § 1228(b), the Attorney General has
discretion to remove non-Legal Permanent Residents
convicted of aggravated felonies through either regular or
administrative proceedings. Cisneros concedes she had been
convicted of an aggravated felony. Accordingly, the record
before the court establishes Cisneros was eligible to be
removed through administrative proceedings.



     2
      It is worth noting Cisneros’s opening brief contained two short
paragraphs on the issue of prejudice which stated only that Cisneros’s
facial eligibility for a U-visa demonstrated she had plausible grounds for
relief and, therefore, suffered prejudice.
         UNITED STATES V. CISNEROS-RODRIGUEZ                  35

    Administrative removal proceedings commence when an
ICE agent serves a deportable person with a Notice of Intent
to Issue a Final Order of Administrative Removal. 8 C.F.R.
§ 238.1(b)(2)(i). After proceedings commence, the deportable
alien may challenge her placement in administrative rather
than regular proceedings, but only on very limited grounds.
Thus, the majority is correct that “an ICE agent can take an
undocumented alien already put in administrative removal
proceedings out of those proceedings and put her into
removal proceedings before an Immigration Judge.” But
contrary to the majority’s representation, it is not as simple as
an ICE agent making this discretionary decision. Instead, a
regulation makes clear how and when transfer out of
administrative proceedings into regular proceeding is
appropriate. According to 8 C.F.R. § 238.1(b)–(d), an ICE
agent may transfer a non-citizen whose administrative
removal proceeding has begun to non-administrative
proceedings if the non-citizen “rebut[s] the allegations
supporting the charge” and, upon examination of the
evidence, the agent concludes the non-citizen is “not
amenable to [administrative] removal.” See 8 C.F.R.
§ 238.1(b)–(d). Cisneros has not asserted either of these
grounds. Therefore, Cisneros has not identified a plausible or
even a possible way she could have been transferred out of
the administrative proceedings.

    B. Non-Citizens Cannot Obtain U-Visas While in
       Administrative Proceedings

    Given that Cisneros was properly in administrative
proceedings and has not identified any possible way she
could have been transferred out of administrative
proceedings, she was barred from obtaining any form of
discretionary relief while in those proceedings. Under the
36       UNITED STATES V. CISNEROS-RODRIGUEZ

language of § 1228(b)(5), Cisneros was statutorily barred
from obtaining discretionary relief while in administrative
proceedings. I agree with the majority that non-citizens who
have been convicted of aggravated felonies are not
automatically barred from applying for or obtaining a U-visa.
United States v. Alvarado-Pineda, 774 F.3d 1198, 1201–1202
(9th Cir. 2014) (citing 8 U.S.C. § 1101(a)(15)(T)). But a
non-citizen who is prima facie eligible for a U-visa and has
been convicted of an aggravated felony may only obtain
discretionary relief (e.g. a waiver of inadmissibility and U-
visa) outside of administrative removal proceedings, for
instance, when as mentioned in Alvarado-Pineda, the alien
seeks admission to the U.S. from another country. See
Alvarado-Pineda, 774 F.3d at 1201–1202 (discussing waiver
and U-visa as forms of relief from which aggravated felons
are not barred when applying for admission to the U.S.). In
sum, the majority is incorrect that Cisneros could have
obtained a U-visa after service of the Notice of Intent to Issue
a Final Order of Administrative Removal but before the
issuance of the actual Final Order of Administrative
Removal—in other words, while she was in administrative
removal proceedings.

    The Ninth Circuit has explicitly recognized the bar on
discretionary relief for non-citizens in administrative removal
proceedings on at least two occasions. In United States v.
Calderon-Segura, 512 F.3d 1104, 1108 (9th Cir. 2008), the
court held that once placed in administrative proceedings, “a
non-[Legal Permanent Resident] aggravated felon subject to
expedited removal [is] statutorily ineligible for any
discretionary relief.” Second, in United States v. Reyes-
Bonilla, 671 F.3d 1036, 1050 (9th Cir. 2012), it was held an
individual “could not receive any discretionary relief from
removal because he had been placed in [administrative]
         UNITED STATES V. CISNEROS-RODRIGUEZ                 37

proceedings based on his felony convictions.” See also
United States v. Garcia-Martinez, 228 F.3d 956, 964 (9th Cir.
2000) (holding “deportation was a foregone conclusion” for
alien who did not challenge his conviction for an aggravated
felony).

    In Reyes-Bonilla, the court concluded the defendant’s
“status as an aggravated felon” meant “the only form of
immigration relief available to [him] was deferral of removal
under CAT.” Reyes-Bonilla, 671 F.3d at 1050. The majority
attempts to read into this a qualification to the bar against
discretionary relief in administrative proceedings. But this is
a misunderstanding of Reyes-Bonilla. The majority states
Reyes-Bonilla “did not treat the fact that the defendant had
been placed into administrative proceedings as a bar to all
relief from removal, notwithstanding the text of
§ 1228(b)(5).” That is correct, but the majority is confusing
discretionary and mandatory types of relief. CAT relief is not
discretionary, it is mandatory. Reyes-Bonilla, 671 F.3d at
1050. Thus, the fact that § 1228(b)(5) did not bar potential,
mandatory CAT relief in Reyes-Bonilla has no bearing on
whether that statute bars discretionary forms of relief, such as
waivers of inadmissibility and U-visas.

    Overall, the majority ignores the law that created the one-
two punch of an aggravated felony conviction coupled with
placement in administrative removal proceedings. The
majority maintains that because such convictions do not
absolutely bar U-visa eligibility, Cisneros could have applied
for and received a U-visa even while she was engaged in
administrative removal. In reaching this conclusion, the
majority relies upon a 2009 DHS policy under which it claims
ICE vowed to stay administrative removal proceedings if
there were a pending U-visa petition. See Memorandum from
38       UNITED STATES V. CISNEROS-RODRIGUEZ

Peter S. Vincent, Principal Legal Advisor, U.S. Immigration
& Customs Enforcement to the Office of the Principal
Legal Advisor (Sept. 25, 2009), available at
http://1.usa.gov/1GqVkYK. But the majority misreads the
policy. The policy does not provide for stays of active
administrative removal proceedings. Instead, it provides that
ICE will stay regular removal proceedings, final orders of
removal (resulting from regular proceedings), and final orders
of administrative removal (resulting from administrative
proceedings).

     C. Cisneros Might Have Applied for a U-Visa and
        Stay of Deportation After Her Removal
        Proceedings Closed

    The complicated journey through administrative
proceedings and the statutory bar of § 1228(b)(5) shows the
flaws in the majority’s analysis. But there is a more
convincing argument, which neither the majority nor Cisneros
pursue and which created a possibility of skirting the bar of
§ 1228(b)(5).

    Had Cisneros been advised and obtained an attorney after
receiving the Notice of Intent to Issue a Final Order of
Administrative Removal, her attorney could have filed a U-
visa petition on her behalf and, after receiving a Final Order
of Administrative Removal (“FARO”), could have applied for
a stay of her deportation pending a determination of the U-
visa petition. The possibility of applying for a stay of
deportation is provided not only in ICE policy, but in
regulation: “The filing of a petition for U-1 nonimmigrant
status has no effect on ICE’s authority to execute a final
order, although the alien may file a request for a stay of
removal pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a).”
           UNITED STATES V. CISNEROS-RODRIGUEZ                          39

8 C.F.R. § § 214.14(c)(1)(ii). Section 241.6(a) states: “[The
district director may,] in his or her discretion and in
consideration of factors listed in 8 CFR 212.5 and section
241(c) of the Act, []grant a stay of removal or deportation for
such time and under such conditions as he or she may deem
appropriate.” And § 212.5(b) includes “urgent humanitarian
reasons” or “significant public benefit.” 8 C.F.R. 212.5(b).

    In sum, the majority’s contention that an attorney could
have persuaded ICE to transfer Cisneros out of administrative
proceedings or stay her administrative proceedings is
erroneous. But no doubt an attorney might have helped
Cisneros avoid immediate deportation by filing a U-visa
application and an accompanying motion to stay her
deportation. This approach, however, is not addressed by the
majority nor has Cisneros provided any meaningful briefing
on this strategy.3

    Thus, the best scenario for Cisneros, assuming she had
not waived her right to counsel, would have been to obtain an
attorney subsequent to her meeting with Agent Linares, then
to have immediately met with the attorney who would have
had to file applications for a waiver of inadmissibility and a
U-Visa, and moved for a stay of her deportation pending their
resolution, and finally, to hope the stay were granted.
Cisneros has not presented any coherent argument that this
sequence of events was plausible. But even assuming it were,
Cisneros still has not shown it was plausible that after
receiving a stay of her deportation she would have been
granted a U-visa and avoided removal.


 3
   The regulations governing post-removal order stays were first brought
to the court’s attention in a 28(j) letter submitted after the completion of
appellate briefing.
40       UNITED STATES V. CISNEROS-RODRIGUEZ

     D. Cisneros Has Not Shown She Plausibly Would
        Have Been Granted a U-Visa

    The majority relies heavily on an alleged general U-visa
approval rate of seventy percent in determining Cisneros had
a plausible chance of being granted a U-visa. But this statistic
does not account for many possible variables among
petitioners, including criminal histories, particularly for
aggravated felonies.

    The rejection by this circuit of general statistics as a
means of proving plausibility is embedded in case law.
United States v. Corrales-Beltran, 192 F.3d 1311, 1318 (9th
Cir. 1999) (“[An alien] must make a plausible showing that
the Attorney General would have exercised discretion in his
favor because of the unique circumstances of his own case.”).
In Corrales-Beltran, the court held even a general statistic
showing discretionary relief was granted fifty percent of the
time was insufficient to show such relief was plausible with
respect to a specific individual with a unique set of
circumstances. Instead, the court held, “it would be sheer
speculation to conclude, without more, that [the] appeal
would have been successful.” Id. In United States v. Barajas-
Alvarado, the Ninth Circuit held: “[T]o show ‘plausible
grounds’ for relief, an alien must show that . . . based on the
‘unique circumstances of [the alien’s] own case,’ it was
plausible (not merely conceivable) that the [Immigration
Judge] would have exercised his discretion in the alien’s
favor.” 655 F.3d 1077, 1089 (9th Cir. 2011). The clear
message of these cases is that general statistics are of little
help to the court in determining the plausibility of relief for
non-citizens challenging their removal. The majority does not
explain why a global seventy percent approval rate would
           UNITED STATES V. CISNEROS-RODRIGUEZ                         41

make it plausible for individual relief when the court has
previously held a fifty percent general approval rate does not.

    This is problematic for another reason. The numbers from
which it was calculated are open to several alternative,
equally possible interpretations. See Number of I-918
Petitions for U Nonimmigrant Status (Victims of
Certain Criminal Activities and Family Members) by
Fiscal Year, Quarter, and Case Status 2009–2015, U.S.
Citizenship & Immigration Services, available at
http://1.usa.gov/18LyQG3.4 The majority arrived at the
seventy percent statistic by dividing the number of petitions
approved and denied in 2010 by the number approved
[(10,073/14,420) x 100=69.85%]. But, at the end of 2009,
11,863 petitions were pending. In 2010, 10,742 more
petitions were submitted. Out of the 22,605 pending petitions
in 2010, 10,073 were approved. By that estimate, the
approval rate was forty-five percent. Furthermore, it is
unclear from the chart when the petitions in each category
(approved, denied, pending) were submitted. For example,
petitions approved in 2010 could have been hold-overs from
those pending in 2009. Finally, the petitions pending in 2009
might have been submitted any time between 2000 (when the
U-visa was created) and 2009. Therefore, while it is possible
to derive a seventy percent approval rate from analyzing a
particular year, it is unclear whether that accurately reflects
the reality.


  4
   The statistics were not part of the record before the district court and
were first submitted to this court in a 28(j) letter, even though they had
been available for years prior. Furthermore, Cisneros’s 28(j) letter
contained only raw data for U-visa petitions received, approved, denied,
and pending during 2009 and 2010. The seventy percent approval rate was
calculated by the majority, not Cisneros.
42       UNITED STATES V. CISNEROS-RODRIGUEZ

    The marginal value of these statistics is further shown by
the complete absence of any information about why
individuals were approved or denied. We know that in
evaluating applications for waivers of inadmissibility, USCIS
considers “the number and severity of offenses of which the
applicant has been convicted.” 8 C.F.R. § 212.17(b)(1)–(2).
We do not know why Cisneros’s petition was denied but we
do know that even without her conviction for reentry after
deportation, she had a significant criminal history. The single
difference between Cisneros’s theoretical U-visa petition
before removal and the one she eventually filed is that she
illegally reentered the U.S. after she had been deported. The
majority appears to have concluded that merely her illegal
reentry conviction defeated Cisneros’s application, not her
lengthy criminal record, including convictions for possession
for sale of methamphetamine. We have nothing in the record
or law to support this assumption.

    The majority explains that the overall approval rate for U-
visas, coupled with Cisneros’s citizen family members,
establishes it was plausible her U-visa application would have
been approved. I do not understand the basis for this
conclusion. Perhaps the majority means the overall seventy
percent approval rate establishes, as a matter of law, that a U-
visa was plausible. After all, if someone with a very
substantial criminal record such as Cisneros always has a
“plausible” case for a U-visa, it would be difficult to see
which individuals would not. My impression is that the
majority’s disregard of the seriousness of the Cisneros’s prior
offenses is colored by the view that a co-defendant,
Rodriguez, allegedly forced Cisneros to sell
methamphetamine. But Rodriguez was never convicted of
this conduct. The only crime against Cisneros with which
Rodriguez was charged was extortion while the two were
           UNITED STATES V. CISNEROS-RODRIGUEZ                           43

incarcerated for their shared drug crime.5 This prediction
should not be based on unsubstantiated assumptions.

    Determining the plausibility that a government agency
mired in a web of complicated governing law would have
granted a single petition over five years ago is difficult. But
the party arguing plausibility, in this case Cisneros, always
bears the burden of proof. And, despite the possibility that
counsel theoretically might have submitted a U-visa petition
and stayed Cisneros’s removal until the outcome of that
petition, Cisneros has not met her burden of showing she had
a plausible chance of being granted relief from removal.
Therefore, I must dissent.




  5
     In crediting Cisneros’s testimony and her account of coercion, the
majority also mischaracterizes or disregards the underlying facts. The
majority states, in 2006, Cisneros reported to police that Rodriguez had
stolen her car. But Cisneros testified at Rodriguez’s extortion hearing that
she had never filed a police report regarding the stolen vehicle. Rather, she
stated the police had come to her after her vehicle was discovered in
connection with a crime involving stolen mail. At that point, despite
testifying that she did not witness the crime or have any other substantial
contact with or knowledge of Rodriguez, Cisneros said she told police
Rodriguez had stolen her car and was responsible for the stolen mail.
These facts cast serious doubt on whether we know the full story of
Cisneros’s relationship with Rodriguez.
