                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1664
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                 Petra Santos-Pulido

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                           Submitted: February 29, 2016
                              Filed: March 8, 2016
                                 ____________

Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       Petra Santos-Pulido, a native and citizen of Mexico, illegally entered the
United States on May 21, 2010, hoping to find work. A few days later, she
encountered U.S. Department of Homeland Security (DHS) border-patrol agents in
Tucson, Arizona. As required by 8 U.S.C. § 1225(a)(1), the border-patrol agents
treated Santos-Pulido as “an applicant for admission.” Records of the encounter
indicate a border-patrol agent advised Santos-Pulido in Spanish of her rights and took
her sworn statement regarding her entry into the United States. Santos-Pulido
reported she sought work and a better life in the United States but had no reason to
fear returning to Mexico. Based on Santos-Pulido’s sworn statement and her lack of
valid entry documents, DHS determined Santos-Pulido was inadmissible under
8 U.S.C. § 1182(a)(7)(A)(i)(I) and removed her from the United States. See 8 U.S.C.
§ 1225(b)(1)(A)(i)-(B)(iii) (requiring expedited removal absent a request for asylum
or a “credible fear of persecution”). Before Santos-Pulido returned to Mexico, DHS
advised her of the penalties for illegally reentering the United States.

       Santos-Pulido nonetheless illegally reentered the United States three times in
June 2010. Each time, DHS reinstated the original removal order and removed
Santos-Pulido, communicating to her in Spanish the basis for removability and her
right to contest DHS’s determination. See 8 U.S.C. § 1231(a)(5). On two of those
occasions, Santos-Pulido pled guilty in the Southern District of Texas to entering the
United States unlawfully in violation of 8 U.S.C. § 1325(a)(1), receiving a sentence
of time served for the first conviction and ten days for the second.

      Four years later, Santos-Pulido was a passenger in a car involved in an accident
in Cedar Rapids, Iowa. Immigration officers later arrested Santos-Pulido for
reentering the United States without authorization.

       On August 13, 2014, a grand jury charged Santos-Pulido with one count of
being found in the United States after removal in violation of 8 U.S.C. § 1326(a). On
September 12, 2014, Santos-Pulido moved to dismiss the indictment, arguing the
underlying removal order violated her Fifth Amendment right to due process under
the U.S. Constitution because DHS failed “to explain in Spanish all of [Santos-
Pulido’s] rights that she would be giving up in a [sic] expedited removal order” and
failed “to allow her to withdraw her application for admission.”




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       The district court1 initially scheduled a motion hearing but, upon reviewing the
briefs, determined a hearing was unnecessary. On September 29, 2014, the district
court denied Santos-Pulido’s motion because she could not “show that entry of the
removal order was fundamentally unfair.” See 8 U.S.C. § 1326(d)(3) (permitting
collateral attacks on a removal order used to support a conviction under 8 U.S.C.
§ 1326(a) if the alien demonstrates “the entry of the order was fundamentally unfair”).
Closely reviewing the administrative record, the district court concluded DHS had
“adequately explained in Spanish the rights [Santos-Pulido] was giving up.”

       With respect to Santos-Pulido’s claimed right to withdraw her application, the
district court pointed out Santos-Pulido “provide[d] no authority in support of her
argument that one subject to expedited removal has a right to withdraw an application
for admission.” Noting 8 C.F.R. § 1235.4 instead (1) gives the Attorney General
discretion to “permit any alien applicant for admission to withdraw his or her
application for admission in lieu of . . . expedited removal,” and (2) clarifies “nothing
in this section shall be construed as to give an alien the right to withdraw his or her
application for admission,” the district court determined Santos-Pulido had no right
to withdraw her application and DHS had no duty to advise her of the Attorney
General’s discretion to permit withdrawal.

       Santos-Pulido conditionally pled guilty to illegal reentry, reserving the right
to challenge the district court’s order. The district court sentenced Santos-Pulido to
time served (181 days).

      In accordance with her plea agreement, Santos-Pulido appeals the district
court’s denial of her motion to dismiss the indictment. Santos-Pulido contends the



      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

                                          -3-
district court erred in concluding, without an evidentiary hearing, that her original
removal order “did not violate her right to due process.”

       “We review de novo the district court’s denial of [Santos-Pulido’s] motion to
dismiss” the indictment. United States v. Torres-Sanchez, 68 F.3d 227, 229 (8th Cir.
1995). To prove the expedited removal proceeding was “fundamentally unfair in
violation of due process,” Santos-Pulido must show both “a fundamental procedural
error” and actual prejudice. Id. at 230. In evaluating Santos-Pulido’s due process
claim, “[w]e review the district court’s findings of fact for clear error, but we review
de novo whether those facts establish a due process defect.” United States v.
Rodriguez, 420 F.3d 831, 833 (8th Cir. 2005). We review the district court’s decision
to resolve the motion to dismiss without a hearing for the abuse of discretion. See
United States v. Pierre, 795 F.3d 847, 852 (8th Cir. 2015).

       Having carefully reviewed the record and the parties’ submissions, we
conclude the district court did not err in denying Santos-Pulido’s motion to dismiss
without a hearing. We agree with the district court that Santos-Pulido failed to
establish a due process violation. See Torres-Sanchez, 68 F.3d at 230.

      Notwithstanding her assertions to the contrary, Santos-Pulido’s due process
claim does not turn on a factual dispute about her removal proceeding, nor is it based
upon alleged translation errors or Santos-Pulido’s alleged inability to understand the
border-patrol agent’s “poor [Spanish] interpretation.”2              Rather, Santos-


      2
        Santos-Pulido concedes she “cannot establish poor interpretation,” attributing
that failure to the lack of an evidentiary hearing. But Santos-Pulido not only fails to
adduce any competent evidence even hinting at improper translation, see, e.g., Tun
v. Gonzales, 485 F.3d 1014, 1030 (8th Cir. 2007) (“[E]vidence of improper
translation may include direct evidence of mistranslated words, evidence that a
witness is unable to understand a translator, or unresponsive answers from a
witness.”), Santos-Pulido also fails to describe any probative evidence of prejudicial

                                          -4-
Pulido’s due process claim is based on her fallacious legal argument that she had the
“right to withdraw her application for admission at the border,” see 8 C.F.R. § 1235.4;
Escudero-Corona v. INS, 244 F.3d 608, 615 (8th Cir. 2001) (explaining an alien does
not have a constitutional right to discretionary relief), and her uncontested factual
assertion that she would have sought to exercise that “right” and voluntarily requested
return to Mexico, “[i]f she had been properly advised.” The district court properly
rejected that claim without further factual development. See Polanco-Gomez, 841
F.2d at 237-38 (“A hearing is not required if a dispute can be resolved on the basis
of the record.”).

      We affirm the judgment of the district court.
                      ______________________________




translation errors she would have elicited at an evidentiary hearing. Cf. United States
v. Polanco-Gomez, 841 F.2d 235, 237 (8th Cir. 1988) (finding, in the absence of a
supporting affidavit, “nothing in the record indicate[d] that [an alien] could not
understand the interpreter’s Spanish translation” where the alien “never indicated that
he could not understand the” questions posed, “responded appropriately,” and
“acknowledged that he understood the interpreter”).

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