FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LUIS RUIZ-LOPEZ,

Defendant-Appellant.

No. 13-10093

D.C. No.

5:11-cr-00749-LHK-1

OPINION

Appeal from the United States District Court

for the Northern District of California

Lucy Koh, District Judge, Presiding

Argued and Submitted

March 12, 2014—San Francisco, California

Filed April 25, 2014

Before: M. Margaret McKeown and Ronald M. Gould,

Circuit Judges, and Gordon J. Quist, Senior District Judge.*

Opinion by Judge Gould

* The Honorable Gordon J. Quist, Senior District Judge for the U.S.

District Court for the Western District of Michigan, sitting by designation.
2 UNITED STATES V. RUIZ-LOPEZ

SUMMARY**

Criminal Law

The panel affirmed the district court’s denial of a motion

for judgment of acquittal in a case in which the defendant was

convicted of illegal reentry following deportation.

The panel held that the evidence presented was sufficient

to prove alienage beyond a reasonable doubt. The panel held

that so long as the documents in an A-file, including a Form

I-213, have been properly admitted, and the jury has been

instructed as to the “beyond a reasonable doubt” standard,

such documents may be considered by the jury and,

depending on their contents, may constitute sufficient proof

of alienage if the jury so concludes. Regarding the

defendant’s challenge to the reliability of the Form I-213 in

this case, the panel held that a rational trier of fact could

come to the conclusion that the Form I-213 accurately

captured the defendant’s interview with a DHS agent.

** 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. RUIZ-LOPEZ 3

COUNSEL

Karen L. Landau (argued), Oakland, California, for

Defendant-Appellant.

Susan B. Gray (argued), Assistant United States Attorney,

Melinda Haag, United States Attorney, Barbara J. Valliere,

Chief, Appellate Division, Department of Justice, San

Francisco, California, for Plaintiff-Appellee.

OPINION

GOULD, Circuit Judge:

Luis Ruiz-Lopez, convicted of illegal reentry following

deportation under 8 U.S.C. § 1326(a) and (b), seeks a

judgment of acquittal. He claims that the government did not

present evidence sufficient to prove his alienage beyond a

reasonable doubt. Because we conclude that sufficient

evidence supported the jury’s finding of alienage, we affirm

the district court’s denial of a judgment of acquittal.

I

In December 2002, Ruiz-Lopez was interviewed in the

Solano County Jail in Fairfield, California by Department of

Homeland Security (“DHS”) Agent Axel Sauter. From 1997

to 2002, Agent Sauter was assigned “to interview aliens

encountered in the United States to determine their status,”

and he conducted about 600 interviews a year. Although not

fluent in Spanish, Agent Sauter received Spanish lessons as

part of his training and did “more than half” of his interviews

at the Solano County jail in Spanish. It was his “regular
4 UNITED STATES V. RUIZ-LOPEZ

practice” to terminate the interview if language proved to be

a barrier to communication. Agent Sauter conducted each

interview the same way according to his “pattern and

practice.” He would take handwritten notes during the

interview, and then type those notes and enter them onto a

Record of Deportable/Inadmissible Alien form (“Form I213”) within a day. None of the information entered onto the

Form I-213 was taken from state or federal indices or filled

in before the interview, although Agent Sauter would look at

such indices before an interview to confirm any relevant

information.

Ruiz-Lopez was arrested in 2011 in Northern California. 

During Ruiz-Lopez’s jury trial for illegal reentry, Agent

Sauter testified that he could not remember Ruiz-Lopez, but

Agent Sauter recognized his own signature and name on

Ruiz-Lopez’s Form I-213. The Form I-213 relating to RuizLopez was created followingAgent Sauter’s usual pattern and

practice.

Agent Sauter testified that Ruiz-Lopez told him that:

(1) he “was born in Zamora, Michoacan, Mexico”; (2) in

1997, Ruiz-Lopez entered the United States near Nogales,

Arizona, without inspection after having used the services of

a “coyote,” or smuggler, for the price of $800; and (3) his

father and mother were both born in Mexico, but they were in

the United States as lawful permanent residents. Ruiz-Lopez

said that he did not fear persecution if he returned to Mexico,

that he had no pending application for status in the United

States, and that his parents had not applied for any kind of

benefit on his behalf.

Agent Courtney Norris of the Immigration and Customs

Enforcement (“ICE”) testified about the documents in Ruiz-
UNITED STATES V. RUIZ-LOPEZ 5

Lopez’s A-file, which is the “official record for an

individual” recording “all of that individual’s contacts or

encounters with Immigration Customs Enforcement,

Citizenship and Immigration Services, Custom and Border

Protection, and the Legacy INS.” Ruiz-Lopez’s A-file

contained the following documents: (1) the Form I-213; (2) a

Notice of Intent to Issue a Final Administrative Removal

Order (“Form I-851”); (3) a Final Administrative Removal

Order (“Form I-851A”); (4) a Warning to Alien Ordered

Removed or Deported, in English and Spanish (“Form I294”); and (5) a Warrant of Removal/Deportation (“Form I205”).

The Form I-851 was served on Ruiz-Lopez nineteen days

before his removal. It notified him that the INS had

determined that he was subject to expedited administrative

removal based on allegations that he was not a citizen or

national of the United States, was a native and citizen of

Mexico, had entered the United States near Nogales, Arizona,

without inspection, and was not eligible for any statutory

relief from deportation. That form also had a section titled

“Your Rights and Responsibilities” that told Ruiz-Lopez of

his rights, and he acknowledged receipt of that notice by

signing it at the top of the second page, using his alias Luis

Rodriguez. At the bottom of that page, the box admitting the

allegations and waiving his right to contest the charges or

petition for review of the Final Removal Order had been prechecked. Ruiz-Lopez’s signature and fingerprint on that

Form I-851 were witnessed by a detention officer.

The other forms were also served on Ruiz-Lopez. The

Form I-294 was served on Ruiz-Lopez in both English and

Spanish, and it told him that he had been found deportable,

that he was time barred from reapplying for permission to
6 UNITED STATES V. RUIZ-LOPEZ

enter the United States, and of the legal consequences if he

were to reenter illegally. On both the English and Spanish

forms, Ruiz-Lopez hand-marked and initialed boxes

acknowledging receipt, signed them, and attached

fingerprints. Agent Norris admitted that sometimes the boxes

detailing that the form had been explained do not get

checked, but “the pattern and practice is to explain [the

form].”

Ruiz-Lopez’s Record of Sworn Statement, taken after his

arrest in 2011, was also admitted in evidence with redaction. 

Agent Norris testified that in the area describing languages

spoken by Ruiz-Lopez, the Spanish box had been pre-printed

as checked, but the English box was checked by hand and the

form specified that an interpreter was not used.

At the close of the government’s case, Ruiz-Lopez moved

for judgment of acquittal under Federal Rule of Criminal

Procedure 29 based on insufficient evidence establishing that

he was an alien. The district court denied this motion. After

the guilty verdict, the motion was renewed and again denied.

II

We review de novo the district court’s denial of a motion

for judgment of acquittal based on insufficient evidence. 

United States v. Acosta-Sierra, 690 F.3d 1111, 1117 (9th Cir.

2012). Under Jackson v. Virginia, 443 U.S. 307, 319 (1979),

we view the evidence in the light most favorable to the

prosecution, and then determine whether any rational trier of

fact could have found the essential elements of the crime

beyond a reasonable doubt. United States v. Nevils, 598 F.3d

1158, 1167 (9th Cir. 2010) (en banc). This standard,

protecting the key role of the jury in determining guilt or
UNITED STATES V. RUIZ-LOPEZ 7

innocence of crime, cannot be met by a person convicted in

jury trial, when the jury heard evidence that would permit it

to find guilt beyond a reasonable doubt on all the essential

elements of the crime.

Ruiz-Lopez contends that the evidence presented at trial

was insufficient for a jury to find his alienage beyond a

reasonable doubt. To be convicted of illegal reentry under

8 U.S.C. § 1326, the government must prove that “the

defendant was an alien at the time of the defendant’s entry

into the United States.” Ninth Circuit Criminal Jury

Instruction 9.8 (2010). “[N]either a deportation order, nor the

defendant’s own admissions, standing alone,” is sufficient to

prove alienage. United States v. Ramirez-Cortez, 213 F.3d

1149, 1158 (9th Cir. 2000) (internal citations omitted); see

also United States v. Sotelo, 109 F.3d 1446, 1449 (9th Cir.

1997).

We conclude that the evidence presented was sufficient to

find the requisite alienage. Ruiz-Lopez argues that United

States v. Ortiz-Lopez, 24 F.3d 53 (9th Cir. 1994), is

controlling. In that case, we held that a deportation order

alone was not sufficient to support a finding of alienage. Id. 

We declined to shift the burden of proof by requiring a

defendant to overcome a presumption of alienage created by

a deportation order. Id. at 56; see United States v. NoriegaPerez, 670 F.3d 1033, 1039 n.5 (9th Cir. 2012) (finding that

“the circumstantial evidence relied on by the Government

‘does not implicate the burden-shifting or standards of proof

problems of Ortiz-Lopez’” (quoting United States v. BarajasMontiel, 185 F.3d 947, 955 (9th Cir. 1999))). Relying on

Ortiz-Lopez, Ruiz-Lopez contends that the only evidence of

his alienage is the deportation order, which, he asserts,

includes the Form I-213 and all of the documentation in the
8 UNITED STATES V. RUIZ-LOPEZ

A-file because those documents relied upon and flowed from

the Form I-213. At the same time, Ruiz-Lopez seeks to

undermine the credibility of the Form I-213 by suggesting

that Agent Sauter’s rendering of the interview was flawed

because of practices or potential language issues.

We reject these arguments. Although we have

consistently barred reliance on a deportation order alone to

prove alienage, the Form I-213 and other documentation

included in Ruiz-Lopez’s A-file are not a “deportation order.” 

The Form I-213 starts the deportation process, but is not an

“order.” See United States v. Garcia-Villegas, 575 F.3d 949,

951 (9th Cir. 2009) (describing information similar to that in

the Form I-213, includingmethod of illegal entry, as evidence

of alienage); United States v. Bahena-Cardenas, 411 F.3d

1067, 1076 (9th Cir. 2005) (referring to “evidence of

deportation” rather than all of the evidence leading to that

deportation). This view is supported by United States v.

Hernandez, 105 F.3d 1330, 1333 (9th Cir. 1997), where we

concluded that, along with a deportation order, “the fact that

Hernandez entered the United States by scaling the border

fence rather than via an established border checkpoint is an

indication that Hernandez entered the United States illegally

as an alien.” Information like that presented in Hernandez

was included in Ruiz-Lopez’s Form I-213,which said that he

had employed a coyote to smuggle him into the country for

the sum of $800. This is more information than the mere fact

of Ruiz-Lopez’s prior deportation. Ruiz-Lopez gave other

information corroborating his likely alienage during the

course of the interview, and together this evidence is

sufficient to prove alienage. See United States v. GalindoGallegos, 244 F.3d 728, 732 (9th Cir. 2001) (“A defendant’s

admissions that he is an alien, together with a deportation

order, suffice to establish alienage.”); Ramirez-Cortez,
UNITED STATES V. RUIZ-LOPEZ 9

213 F.3d at 1158 (finding sufficient the “prior deportation

order, admissions Ramirez-Cortez made in his underlying

deportation proceeding, and the testimony of an INS agent

that his review of . . . [the] records reflected that RamirezCortez was an alien”). Ruiz-Lopez’s premise that the Form

I-213 is equivalent to the order of deportation is mistaken. So

long as the documents in an A-file have been properly

admitted in the criminal case, and the jury has been instructed

as to the “beyond a reasonable doubt” standard, which is

higher than the standard required in a deportation hearing,

such documents may be considered by the jury and,

depending on their contents, may constitute sufficient proof

of alienage if the jury so concludes.

Additionally, under Jackson, we must consider evidence

in the light most favorable to the prosecution. 443 U.S. at

319. “[A] court of appeals may not usurp the role of the

finder of fact by considering how it would have resolved the

conflicts, made the inferences, or considered the evidence at

trial.” Nevils, 598 F.3d at 1164. The government presented

evidence rebutting language barrier or inaccuracy issues,

including Agent Sauter’s standard practices and the

presentation of Form I-294 in both English and Spanish, as

well as Ruiz-Lopez’s signatures and fingerprints on several

of the forms. Viewed in the light most favorable to the

prosecution, this evidence is sufficient to find that RuizLopez spoke at least some English and that the Form I-213

was accurate. Ruiz-Lopez argues that the facts “undermine

the reliability of the Form I-213 in this case.” But while the

evidence could support a different result, a rational trier of

fact could certainly come to the conclusion that the Form I213 accurately captured Ruiz-Lopez’s interview with Agent

Sauter.
10 UNITED STATES V. RUIZ-LOPEZ

In this case, the jury could have decided that alienage

was, or was not, established beyond a reasonable doubt. 

Under Jackson, the jury verdict must stand where, as here,

after receiving proper instructions, the jury concluded that

Ruiz-Lopez was guilty on all elements of illegal reentry and

the verdict is supported with sufficient evidence. 443 U.S. at

319. For the reasons expressed above, the district court did

not err in denying a judgment of acquittal.

AFFIRMED.