FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-50479 Plaintiff-Appellee,

D.C. No.

v.  CR-02-00300-BTM

ESTEBAN BAHENA-CARDENAS,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Barry T. Moskowitz, District Judge, Presiding

Argued and Submitted

December 9, 2004—Pasadena, California

Filed June 13, 2005

Before: Stephen Reinhardt, Cynthia Holcomb Hall, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Hall

6993
COUNSEL

Michael Edmund Burke, San Diego, California, for the

defendant-appellant. 

Anne Kristina Perry, Assistant United States Attorney, San

Diego, California, for the plaintiff-appellee.

6996 UNITED STATES v. BAHENA-CARDENAS
OPINION

HALL, Senior Circuit Judge: 

Esteban Bahena-Cardenas was convicted by a jury of entering the United States without permission of the Attorney General after being excluded, deported, or removed from the

United States, in violation of 8 U.S.C. § 1326. We affirm. 

BACKGROUND

Bahena-Cardenas first came to the attention of the immigration service following his and his brother’s arrest and conviction for possessing heroin with intent to sell. After serving

his sentence for the drug crime, he and his brother were

ordered deported following a joint hearing in front of an

immigration judge (“IJ”) at which they were represented by

counsel. Bahena-Cardenas was not able to attend the first day

of the hearing because he was in a coma caused by a car accident. The IJ denied his lawyer’s request that his case be severed from his brother’s so that the hearing would not take

place in his absence. During this first day, the government

presented the testimony of the undercover Drug Enforcement

Agency (“DEA”) agent who arrested Bahena-Cardenas and

his brother. After Bahena-Cardenas recovered and was present, the agent was recalled and fully cross-examined. The IJ

determined that Bahena-Cardenas was not a United States citizen and ordered him deported. 

In 2000, a San Diego County employee discovered BahenaCardenas in San Diego. He was subsequently charged with

entering the United States without receiving permission from

the Attorney General after being deported under 18 U.S.C.

§ 1326. He was tried in front of a jury and convicted on June

5, 2003. Three major issues arose at trial, namely, whether

Bahena-Cardenas was an American citizen, whether an expert

witness should have been allowed to testify about delayed

birth certificates in Mexico, and whether there was sufficient

UNITED STATES v. BAHENA-CARDENAS 6997
evidence that Bahena-Cardenas physically left the country

after being deported and later voluntarily reentered. On

appeal, Bahena-Cardenas also raised due process claims concerning his deportation hearing and contends that his sentence

was in error. 

The jury was instructed to decide the following elements

beyond a reasonable doubt: (1) whether the defendant was not

a citizen of the United States; (2) whether the defendant had

previously been deported and actually removed from the

United States to Mexico; (3) whether the defendant voluntarily reentered and remained in the United States without the

Attorney General consenting to a reapplication by the defendant for admission into the United States; and (4) whether the

defendant was found in the southern district of California. 

With regard to Bahena-Cardenas’ alienage, the prosecution

had to prove beyond a reasonable doubt that Bahena-Cardenas

was not a United States citizen. Bahena-Cardenas argued that

he was born in San Diego and was therefore a United States

citizen. Both sides introduced as evidence a number of documents compiled in Bahena-Cardenas’ immigration record or

“A file.” The government’s evidence included a Mexican

birth certificate that was created when Bahena-Cardenas was

13, several school records from American schools listing

Mexico as his place of birth, and a certificate of baptism

issued in 1985 listing his birthplace as Mexico. As evidence

of being born in the United States, Bahena-Cardenas introduced two additional certificates of baptism (signed by different pastors) from 1988 and 1989 that showed his birth place

as San Diego, a Mexican tourist visa, typically issued to

American citizens for travel in Mexico issued to BahenaCardenas, a hospital admission record indicating a California

birthplace, and a 1988 birth registration showing that BahenaCardenas was born at home in San Diego. The defense also

submitted as evidence of United States citizenship a voter registration card and social security records. Bahena-Cardenas

6998 UNITED STATES v. BAHENA-CARDENAS
also introduced a student eligibility report for the year 1982-

83 that listed his citizenship as American. 

Both sides also elicited witnesses testimony. A prosecution

witness testified that non-citizens can procure voter registration cards and social security records because no evidence of

citizenship is required. A defense witness testified that she

was a teenager when Bahena-Cardenas was born and was

with Bahena-Cardenas’ mother at her San Diego home when

she began feeling labor pains. The witness testified that she

went to get her mother while a friend got another adult, Flavio

Canio, who arrived to help deliver the baby. The witness was

not allowed inside the house but remained on the porch while,

Mrs. Bahena-Cardenas gave birth. Two or three days later, the

witness went into the house and saw the baby Esteban. However, the witness was not able to remember the date of Esteban’s birth. 

Bahena-Cardenas’ mother testified that Esteban was born at

home in San Diego. She said that the only people in the room

with her when Esteban was born were her husband and a

friend, Flavio Canio. She testified that the family did not get

an American birth certificate for Esteban when he was younger because “my husband was negligent, he didn’t let me do

anything. . . . Then, afterwards, when the child grew, that is

when I told my husband, let’s take care of the certificate for

the child.” She was not aware of anyone getting Esteban a

Mexican birth certificate. On cross-examination, the prosecutor impeached her with testimony from the deportation proceeding in which she had testified that her husband and sisterin-law, not Flavio Canio, were present at the birth. She also

admitted that she could not remember Esteban’s date of birth.

She was not able to explain why Esteban’s school records

listed Mexico as his place of birth. Nor could she explain why

she waited until her younger son became a United States citizen to adjust her status, rather than adjusting when Esteban

turned 18, as would have been allowed had Esteban been a

United States citizen. 

UNITED STATES v. BAHENA-CARDENAS 6999
The defense sought to present an expert witness to explain

the phenomenon of delayed birth certificates in Mexico. The

expert witness, a sociology professor, had done research into

families living along the border of Mexico and the United

States and was prepared to testify that according to a small

study she directed of such families, around ten percent of

them lied to get Mexican birth certificates. The judge

excluded this testimony because, he ruled, there was an insufficient foundation to suggest that the study’s results were relevant to the issue of Bahena-Cardenas’ birth certificate, which

was procured in a different state. Nor could the expert witness

testify as to whether there was an amnesty program in place

at the time that allowed families to register births without paying a fee, although she was allowed to testify to the general

existence of such amnesty programs. The judge also allowed

the expert to testify that having a Mexican birth certificate is

required to enroll in public schools and to receive free health

care in Mexico. 

The second element the prosecution was required to prove

was whether Bahena-Cardenas actually left the United States

following his deportation order. The government produced a

warrant of deportation, signed by a deportation officer who

attested to watching Bahena-Cardenas walk across the border.

That agent did not testify at trial. Instead, another agent testified that the normal practice is for deportation officers to sign

the warrant of deportation when they see the alien leave the

United States. 

The jury was instructed to find Bahena-Cardenas guilty

only if the government had proven all the necessary elements

beyond a reasonable doubt. The jury returned a verdict of

guilty. When the jury foreperson attempted to read the verdict

in open court, he had difficulty, and the juror sitting next to

him read it instead. 

At sentencing, the judge denied all of the defense attorney’s

requests for downward adjustments, including that for accept7000 UNITED STATES v. BAHENA-CARDENAS
ing responsibility. The judge increased the sentence because

of Bahena-Cardenas’ prior convictions. The judge ruled that

although he had discretion not to increase Bahena-Cardenas’

criminal history score because the conviction for heroin trafficking was 20 years old, he declined to do so. He said he was

influenced at least in part by the fact that Bahena-Cardenas

had a more recent conviction for transportation of methamphetamine. 

DISCUSSION

I. Constitutionality of 8 U.S.C. § 1326

Bahena-Cardenas argues that 8 U.S.C. § 1326 is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000),

because an administrative adjudication — a prior deportation

— is an element of the offense. He argues that because a

deportation hearing is held without the same procedural protections and with a lower standard of proof than criminal proceedings, such a hearing cannot be one of the elements of a

criminal offense. 

[1] Section 1326 does not violate the rule of Apprendi,

which requires that “any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” 530

U.S. at 490. Under § 1326 the government must prove that an

alien was “denied admission, excluded, deported, or removed

from the United States” and “thereafter . . . enters, attempts

to enter, or is at any time found in, the United States.” The

relevant element is whether Bahena-Cardenas was ordered

deported, and the jury found that fact beyond a reasonable

doubt. Although a deportation hearing establishes that an

alien was “denied admission” or “excluded,” and establishing

this fact satisfies an element of a § 1326 conviction, the government may not rely on the deportation hearing, but must

separately prove the exclusion element to secure a § 1326

conviction. Therefore the criminal trial on a §1326 charge

UNITED STATES v. BAHENA-CARDENAS 7001
does not “allow the use of an administrative determination as

conclusive evidence of a fact in a criminal prosecution.”

United States v. Mendoza-Lopez, 481 U.S. 828, 834 n.7

(1987). 

Second, the fact that there are fewer due process safeguards

in a deportation hearing does not make § 1326 unconstitutional because the Supreme Court has held that deportation

hearings must comport with the requirements of due process

before they “may be used to establish conclusively an element

of a criminal offense.” Mendoza-Lopez, 481 U.S. at 838. To

ensure that an alien is convicted of violating § 1326 only after

a valid deportation hearing, the deportation hearing must be

subject to judicial review, including collateral review if necessary. Id. Because all facts necessary for a conviction, including whether the defendant was previously deported, must be

proven to a jury beyond a reasonable doubt, and because the

deportation itself may be attacked collaterally, § 1326 is not

unconstitutional. See United States v. Lara-Aceves, 183 F.3d

1007, 1011-12 (9th Cir. 1999) reversed on other grounds by

United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001)

(holding that using a prior deportation as an element in a

§ 1326 conviction is not unconstitutional despite the lesser

protections available in a deportation hearing). 

II. Sufficiency of the Evidence

Bahena-Cardenas argues that there was insufficient evidence with respect to three of the four elements of 8 U.S.C.

§ 1326 — voluntary entry, physical departure after deportation, and alienage. Because a jury found as a matter of fact

that Bahena-Cardenas was guilty, we “must review the evidence presented against the defendant in the light most favorable to the government to determine whether any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. PachecoMedina, 212 F.3d 1162, 1163 (9th Cir. 2000) (internal quotations omitted). 

7002 UNITED STATES v. BAHENA-CARDENAS
A. Voluntary Entry 

[2] Bahena-Cardenas argues that the government did not

present sufficient evidence that he voluntarily reentered the

United States, as required by 8 U.S.C. § 1326.1 Although the

prosecution did not present any direct evidence of voluntary

entry, such entry could be permissibly inferred from the government’s evidence. 

At trial, the government presented evidence that BahenaCardenas was found in National City, California, a city in San

Diego County that does not share a border with Mexico.

Bahena-Cardenas did not present any evidence to the contrary. This evidence is sufficient to prove voluntary entry

under United States v. Quintana-Torres, 224 F.3d 1157 (9th

Cir. 2000). 

[3] In Quintana-Torres, we held that “evidence of [the

defendant] being in the United States a distance from the border was sufficient in this case to justify any reasonable juror

inferring that he had voluntarily entered the United States.”

Id. at 1158. In the absence of evidence suggesting that the

defendant entered the United States involuntarily, his presence in the United States “is circumstantial proof [of voluntary reentry] that is convincing unless explained away”

because of the small likelihood that someone entered the

United States involuntarily. Id. at 1159. Because BahenaCardenas did not present any such evidence, we hold that the

government produced sufficient evidence to allow any ratio1Bahena-Cardenas also argues that the allegations in the indictment

were insufficient because the indictment did not allege entry. However,

“we have never suggested that the crime of ‘entry’ must be charged in

order to charge the crime of being ‘found in’ ” the United States. United

States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001). In PargaRosas, the court specifically held that even though voluntary entry is an

element that must be proven at trial, it need not be specifically alleged

when the indictment charges that the defendant was found in the United

States. Id.

UNITED STATES v. BAHENA-CARDENAS 7003
nal jury to decide that Bahena-Cardenas entered the United

States voluntarily. 

B. Physical Removal

The government must prove beyond a reasonable doubt that

Bahena-Cardenas physically left the country sometime

between the time he was ordered deported and the time he

was found in the United States. United States v. Romo-Romo,

246 F.3d 1272, 1275-76 (9th Cir. 2001). Indeed, “an alien

must actually leave the country before he can be convicted

under § 1326.” Id. Bahena-Cardenas argues that the government failed to provide sufficient evidence of physical removal

because the only evidence showing that he actually left the

United States after he was ordered deported was inadmissible

hearsay under Crawford v. Washington, 124 S.Ct. 1354

(2004). 

To prove physical removal, the government offered into

evidence a warrant of deportation, signed by an immigration

official. The form included a statement that the officer who

signed the document “witnessed” Bahena-Cardenas’ departure. At trial, a second immigration official testified that it

was standard practice for immigration officers to complete

and sign a warrant of deportation as they witnessed an alien’s

deportation. This second immigration officer admitted, however, that he did not “personally observe Mr. Bahena leaving

the country.” 

Before Crawford, 124 S.Ct. 1354, the admissibility of the

warrant of deportation was clearly established in this circuit.

See United States v. Contreras, 63 F.3d 852, 857 (9th Cir.

1995) (holding that “[t]he I-205 form [warrant of deportation]

is hearsay, but is admissible under the public records exception to the hearsay rule”); see also United States v.

Hernandez-Rojas, 617 F.2d 533 (9th Cir. 1980). BahenaCardenas argues that after the Supreme Court’s decision in

7004 UNITED STATES v. BAHENA-CARDENAS
Crawford, the warrant of deportation is no longer admissible.

We disagree. 

[4] In Crawford, the Supreme Court held that “the government cannot introduce testimonial evidence against a criminal

defendant where the declarant is unavailable at trial and there

was no opportunity for cross-examination at the time the prior

testimony was given.” United States v. Wilmore, 381 F.3d

868, 871 (9th Cir. 2004) (emphasis added) (citing Crawford,

124 S.Ct. at 1374); see Parle v. Runnels, 387 F.3d 1030, 1037

(9th Cir. 2004) (holding that Crawford does not apply to nontestimonial hearsay). However, the Supreme Court declined to

define what constitutes testimonial evidence. Instead, the

Court noted that “[w]e leave for another day any effort to

spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a

former trial; and to police interrogations.” Crawford, 124

S. Ct. at 1374. 

[5] We conclude that the warrant of deportation is nontestimonial because it was not made in anticipation of litigation,

and because it is simply a routine, objective, cataloging of an

unambiguous factual matter. In United States v. HernandezRojas, 617 F.2d 533, 535 (9th Cir. 1980), we held that a warrant of deportation “has none of the features of the subjective

report made by a law enforcement official in an on-the-scene

investigation, which investigative reports lack sufficient guarantees of trustworthiness because they are made in an adversary setting and likely to be used in litigation.” Indeed, “[t]he

notation that [defendant] was deported to Mexico was a ministerial, objective observation, which has inherent reliability

because of the Government’s need to keep accurate records of

the movement of aliens.” Id. Additionally, in United States v.

Contreras, 63 F.3d 852, 857 (9th Cir. 1995), we echoed this

reasoning, holding that “the notation on an I-205 form [warrant of deportation] indicating that an alien has left the country is a routine, objective, indeed mechanical recording of an

UNITED STATES v. BAHENA-CARDENAS 7005
unambiguous factual matter.” In this sense, the warrant of

deportation is no different than a birth certificate or any other

public record which constitutes the routine cataloguing of an

unambiguous factual matter. Surely Crawford did not mean to

require the doctor or nurse who actually filled out a birth certificate to testify as to its veracity. 

We hold that the warrant of deportation in this case is nontestimonial and thus admissible. Accordingly, the government

provided sufficient evidence of physical removal. 

C. Alienage

Bahena-Cardenas argues that there was insufficient evidence for a jury to find beyond a reasonable doubt that he was

not a United States citizen. “This sufficiency-of-the-evidence

challenge can succeed only if, viewing the evidence in the

light most favorable to the prosecution, no rational trier of

fact could have found the essential elements of the crime

beyond a reasonable doubt.” U.S. v. Lo, 231 F.3d 471, 475

(9th Cir. 2000). However, 

this inquiry does not require a court to ask itself

whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt. Instead,

the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable

doubt. 

Jackson v. Virginia, 443 U.S. 307, 318-319 (1979) (emphasis

in original) (citing Johnson v. Louisiana, 406 U.S. 356, 362

(1972)). We have held that “[t]his familiar standard gives full

play to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.”

Jackson, 443 U.S. at 319. 

7006 UNITED STATES v. BAHENA-CARDENAS
The government’s evidence to support its claim of alienage

consisted of (1) a Mexican birth certificate obtained by

Bahena-Cardenas’ father when he was 13; (2) elementary and

secondary school records from American schools that listed

Mexico as his place of birth; (3) a 1985 certificate of baptism

issued in the United States listing his birthplace as Mexico;

and (4) evidence of deportation. In his defense, BahenaCardenas introduced (1) additional certificates of baptism

from a church in the United States signed by different pastors

in 1988 and 1989 that showed his birth place as San Diego;

(2) a Mexican tourist visa typically issued to American citizens traveling to Mexico; (3) a hospital admission record indicating a California birthplace; (4) a voter registration card

issued after deportation proceedings began, (5) social security

records; (6) a student eligibility report from 1982-83 listing

his citizenship as American; (7) a birth certificate issued in

1988 showing that Bahena-Cardenas was born at home in San

Diego; and (8) testimony from his mother and a family friend

that Bahena-Cardenas was born at home in San Diego. 

[6] The jury resolved the conflicting evidence in the government’s favor and concluded beyond a reasonable doubt

that defendant was not a United States citizen. While the evidence was contradictory on this point, contradictory evidence

alone does not require us to find that no rational jury could

have made such a finding. It is the responsibility of the jury

to resolve conflicts in the testimony, to weigh the evidence,

and to draw reasonable inferences. That the jury found the

defendant guilty shows that the jury rejected or found unconvincing the contrary evidence. As the Supreme Court held in

Johnson, 406 U.S. at 362 (internal citations omitted): 

Jury verdicts finding guilt beyond a reasonable doubt

are regularly sustained even though the evidence was

such that the jury would have been justified in having a reasonable doubt; even though the trial judge

might not have reached the same conclusion as the

jury; and even though appellate judges are closely

UNITED STATES v. BAHENA-CARDENAS 7007
divided on the issue whether there was sufficient evidence to support a conviction. 

After viewing the evidence in the light most favorable to

the government, we conclude that a rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. 

III. Foreperson’s Inability to Read the Verdict

[7] When the jury foreman attempted to read the verdict in

open court, he stumbled and stammered, and ultimately a different juror read the verdict. Bahena-Cardenas argues that

these actions were signs of juror illiteracy and that having an

illiterate person on the jury would compromise his due process rights because the juror would not have been able to read

the large number of written exhibits introduced by both sides.

Bahena-Cardenas does not cite any case law in support of his

contention that inclusion of an illiterate juror is a due process

violation, and we can find none. Additionally, such conduct

seems equally indicative of nervousness. Accordingly, we

conclude that the foreperson’s difficulty reading the verdict in

open court did not result in a violation of Bahena-Cardenas’

due process rights. 

IV. Due Process Challenges to the Original Deportation

Hearing

A due process violation that renders the underlying deportation invalid also invalidates a conviction under 8 U.S.C.

§ 1326. Mendoza-Lopez, 481 U.S. at 840. Bahena-Cardenas

argues that the underlying deportation was invalid because the

hearing violated his due process rights in two ways. First,

Bahena-Cardenas argues that his due process rights were violated because he was in a coma during the first day of his

hearing. Second, Bahena-Cardenas contends that the immigration judge’s failure to advise him of the possibility of discre7008 UNITED STATES v. BAHENA-CARDENAS
tionary relief violated due process. We are not persuaded by

either argument. 

A. Lack of Presence at Hearing

[8] Bahena-Cardenas argues that holding the immigration

hearing when he could not be present violated his due process

rights. He is correct that due process requires physical presence in deportation hearings. See United States v. Leon-Leon,

35 F.3d 1428, 1431 n.2 (9th Cir. 1994) (citing Purba v. INS,

884 F.2d 516, 517 (9th Cir. 1989) (holding that an alien is

entitled to be physically present at a deportation hearing)).

However, we conclude that the violation was not prejudicial.

Bahena-Cardenas argues that holding the hearing without

his presence was such an egregious due process violation that

it is unnecessary to show prejudice. However, we have consistently held that defendants must show prejudice in order to

invalidate a § 1326 conviction even when the due process violation is clear. See, e.g., United States v. Alvarado-Delgado,

98 F.3d 492, 493 (9th Cir. 1996) (en banc) (holding that

defendant who was deported without being informed of his

right to a deportation hearing, while having established a violation of due process, must still show prejudice); Leon-Leon,

35 F.3d at 1431 (holding that “in spite of any violation of the

alien’s due process rights, the deportation order may still be

used to prove an element of a crime if the alien fails to show

prejudice resulting from the violation”); United States v.

Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992) (en banc)

(holding that “[t]he defendant also bears the burden of proving prejudice” when immigration judge did not act in accord

with due process). 

[9] Bahena-Cardenas has not demonstrated that he was

prejudiced by his absence on the first day of his deportation

hearing. During the portion of the hearing that BahenaCardenas missed, the only person who testified was the DEA

agent who arrested Bahena-Cardenas for selling heroin. The

UNITED STATES v. BAHENA-CARDENAS 7009
agent was later recalled and subjected to full crossexamination in Bahena-Cardenas’ presence. Moreover, the

immigration judge specifically did not find the agent’s testimony dispositive. 

Bahena-Cardenas also argues that his absence from the

beginning of the trial violated his Sixth Amendment rights

because he was denied the opportunity to assist his lawyer

effectively during the deportation hearing, making it the

equivalent of an “uncounseled prior.” Although aliens in

deportation proceedings have no constitutional right to counsel under the Sixth Amendment, Lara-Aceves, 183 F.3d at

1010 (citing Magallanes-Damian v. INS, 783 F.2d 931, 933

(9th Cir. 1986)), the Fifth Amendment right to due process

has been construed to give aliens the right to have counsel

present. See Baltazar-Alcazar v. INS, 386 F.3d 940, 944 (9th

Cir. 2004). 

Bahena-Cardenas, however, was not denied counsel. In

fact, his lawyer was present at the hearing and it was BahenaCardenas himself who was unavailable. We find no precedent

that suggests that a defendant’s absence from a hearing or

trial, when counsel is present, constitutes a denial of the right

to counsel. Indeed, the right to counsel is important because

of the difficulty aliens have in presenting their cases forcefully and effectively:

A petitioner must weave together a complex tapestry

of evidence and then juxtapose and reconcile that

picture with the voluminous, and not always consistent, administrative and court precedent in this

changing area. . . . These factors and related legal

requirements are daunting enough for a seasoned

immigration lawyer. . . . It is no wonder we have

observed with only a small degree of hyperbole, the

immigration laws have been termed second only to

the Internal Revenue Code in complexity. A lawyer

7010 UNITED STATES v. BAHENA-CARDENAS
is often the only person who could thread the labyrinth. 

Baltazar-Alcazar, 386 F.3d at 947-48 (internal citations and

quotations omitted). An alien’s absence from the proceedings

when a lawyer is ably representing his interests does not

create such problems. 

Accordingly, we conclude that Bahena-Cardenas’ § 1326

conviction should not be overturned based on the fact that he

was not present for the beginning of his deportation hearing.

B. Failure to Inform of Discretionary Relief

Bahena-Cardenas argues that his due process rights were

violated because the immigration judge did not advise him of

plausible discretionary relief. Bahena-Cardenas was deported

following a conviction for selling heroin, and he is therefore

excludable under 8 U.S.C. § 1182(a)(2). The only waiver

available is found in subsection (h), which applies only to

those aliens who were convicted of a single offense of simple

possession of 30 grams or less of marijuana, and therefore

does not apply to Bahena-Cardenas. Accordingly, because

Bahena-Cardenas could not plausibly qualify for discretionary

relief, there is no due process violation. 

V. Testimony of Mexican “Cultural Expert” 

Bahena-Cardenas argues that the district judge erred in

refusing to allow one of the defense’s expert witnesses to testify. We review the district court’s decision to exclude expert

witness testimony for abuse of discretion. United States v.

Cordoba, 194 F.3d 1053 (9th Cir. 1999). We conclude that it

was not an abuse of discretion to hold that such testimony

involved more cultural stereotypes than scientific evidence. 

The defense provided a witness who claimed to be an

expert in Mexican transborder culture. Outside of the presUNITED STATES v. BAHENA-CARDENAS 7011
ence of the jury, the expert testified about a small-scale study

she performed in which a small percentage of study respondents in Tijuana reported lying to Mexican officials in order

to get a Mexican birth certificate. The defense argued that the

study supported the possibility that Bahena-Cardenas’ father

similarly lied when registering his son’s birth. The district

court refused to allow the testimony, reasoning that the study

was too small and did not involve practices in Guerrera, the

state that issued Bahena-Cardenas’ birth certificate. The court

also reasoned that only impermissible stereotypes would

allow the jury to generalize from the expert’s study to the particular facts in this case. The court did allow the expert to testify that having a Mexican birth certificate is required to

enroll in public schools and to receive free health care in

Mexico. 

[10] The expert’s study involved only 56 people, and of

those, only five or six reported lying to get a Mexican birth

certificate. Generalizing from this scant evidence to reach

conclusions in this particular case could encourage jurors to

resort to cultural stereotypes. Refusing to allow expert testimony that would encourage or require jurors to rely on cultural stereotypes is not an abuse of discretion. See United

States v. Verduzco, 373 F.3d 1022, 1034 (9th Cir. 2004)

(holding that it was not an abuse of discretion to exclude

expert witness testimony regarding drug cultures); Jinro

America Inc. v. Secure Investments, Inc., 266 F.3d 993, 1007

(9th Cir. 2001) (“Allowing an expert witness in a civil action

to generalize that most Korean businesses are corrupt, are not

to be trusted and will engage in complicated business transactions to evade Korean currency laws is tantamount to ethnic

or cultural stereotyping, inviting the jury to assume the

Korean litigant fits the stereotype.”); United States v. RubioVillareal, 927 F.2d 1495, 1502 n.6 (9th Cir. 1991) (holding

that it was not an abuse of discretion to reject testimony that

“would have shown that [defendant’s] failure to register his

truck is a common phenomenon in Mexico”). 

7012 UNITED STATES v. BAHENA-CARDENAS
VI. Sentencing

[11] Because Bahena-Cardenas did not challenge his sentence on Sixth Amendment grounds in the district court, we

grant a limited remand pursuant to United States v. Ameline,

No. 02-30326, slip op. at 6368-71 (9th Cir. June 1, 2005) (en

banc).

CONCLUSION

Accordingly, the judgment of the district court is 

AFFIRMED IN PART and REMANDED. 

UNITED STATES v. BAHENA-CARDENAS 7013