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 Texasto 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 yearslater, 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 [SantosPulido’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.” 

-2-
The district court initially scheduled a motion hearing but, upon reviewing the

1

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 ofthe order wasfundamentally 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

The Honorable Linda R. Reade, Chief Judge, United States District Court for

1

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.” Rather, Santos- 2

Santos-Pulido concedesshe “cannot establish poorinterpretation,” attributing 2

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 thatshe 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 errorsshe 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”).

-5-