United States v. Espinoza

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 31, 2025
• Docket: 23-4156
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 31 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-4156 D.C. No. Plaintiff - Appellee, 3:23-cr-00144-TWR-2 v. MEMORANDUM* HECTOR TORRES ESPINOZA,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Todd W. Robinson, District Judge, Presiding

Argued and Submitted October 8, 2025 Pasadena, California

Before: RAWLINSON, MILLER, and JOHNSTONE, Circuit Judges.

Hector Torres Espinoza appeals his conviction for violating 8 U.S.C. § 1326

by attempting to re-enter the United States after having been previously removed.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. “We review de novo whether references to a defendant’s silence

violate the Fifth Amendment privilege against self-incrimination.” United States v.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Bushyhead, 270 F.3d 905, 911 (9th Cir. 2001). In its case-in-chief, the government

referred to several statements Espinoza made to officers after they advised him of

his Miranda rights. He first said, “I mean, it’s pretty simple. I mean, I tried coming

in illegal and the charges that I’m accepting,” then said he did not “see any reason

why to keep talking though” or “see the point of, you know, talking.” Espinoza

argues that these statements are inadmissible under Bushyhead, in which we held

that statements explaining a defendant’s decision to invoke his Fifth Amendment

rights are treated as part of the invocation itself and thus cannot be introduced at

trial during the prosecution’s case-in-chief as evidence of the defendant’s guilt.

270 F.3d at 912.

Espinoza’s statements do not amount to explanatory refusals because

Espinoza did not clearly and unambiguously invoke his right to silence or counsel.

Hurd v. Terhune, 619 F.3d 1080, 1088–89 (9th Cir. 2010). Unlike the defendant in

Hurd who unambiguously invoked his right to silence when officers asked him to

reenact the shooting by saying “I don’t want to do that,” “No,” and “I can’t,” id.,

Espinoza’s statements were equivocal. He expressed doubt about the utility of

continuing to speak with Officer Nicasio but did not express an unwillingness to

talk. Our precedent demands a more definite invocation. See, e.g., Bushyhead, 270

F.3d at 912 (“I have nothing to say.”); Jones, 829 F.3d at 1140 (“I don’t want to

talk no more.”); Arnold v. Runnels, 421 F.3d 859, 866 (9th Cir. 2005) (“[I do not]

2 23-4156 want to talk on tape.”). Because Espinoza did not unambiguously communicate a

desire to remain silent or to contact an attorney, the admission of his statements at

trial did not violate the Fifth Amendment.

2. “We review de novo the district court’s decision on a motion to

dismiss an indictment under 8 U.S.C. § 1326 . . . when the motion is based on

alleged due process defects in an underlying deportation proceeding.” United

States v. Valdivias-Soto, 112 F.4th 713, 721 (9th Cir. 2024) (citation modified).

Section 1326(d)(3) requires both a due process violation during the removal

proceedings and resulting prejudice. Id. at 722. To establish prejudice, a defendant

must show he had a “plausible ground for relief from deportation.” United States v.

Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). Espinoza argues that his

due process rights were violated on the basis of ineffective assistance of counsel

because his attorney did not pursue a U-visa on his behalf. But this oversight was

outside of and unrelated to the fairness or substance of the removal proceeding

itself and therefore is not cognizable under § 1326(d)(3). See Balam-Chuc v.

Mukasey, 547 F.3d 1044, 1051 (9th Cir. 2008) (Due process “simply does not

apply to the preparation and filing of a petition that does not relate to the

fundamental fairness of an ongoing proceeding.”).

Even if we were to assume that Espinoza’s ineffective assistance claim did

relate to his removal proceedings, Espinoza also has not shown prejudice because

3 23-4156 he is not plausibly eligible for relief. See United States v. Cisneros-Rodriguez, 813

F.3d 748, 761 (9th Cir. 2015). Because Espinoza has an aggravated-felony

conviction for a violent offense, he would have needed to receive a waiver of

inadmissibility from the Secretary of Homeland Security to seek a U-visa. See 8

U.S.C. § 1182(d)(14). Such waivers are granted “only . . . in extraordinary

circumstances,” 8 C.F.R. § 212.17(b)(2), when “the Secretary of Homeland

Security considers it to be in the public or national interest to do so,” 8 U.S.C.

§ 1182(d)(14). No such extraordinary circumstances are present here. Because

Espinoza has not demonstrated a plausible chance of obtaining a U-visa, he cannot

satisfy § 1326(d)(3). Accordingly, his motion to dismiss was properly denied.

AFFIRMED.

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