U.S. v. Lopez-Velasquez

• Decision Date: 07 December 2010
• Docket Number: No. 07-30241,07-30241
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Edmundo LOPEZ-VELASQUEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

629 F.3d 894

UNITED STATES of America, Plaintiff-Appellant,

v.Edmundo LOPEZ-VELASQUEZ, Defendant-Appellee.

No. 07-30241.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 23, 2010.

Filed Dec. 7, 2010.

Karin J. Immergut, United States Attorney, Jonathan S. Haub and Kelly A. Zusman, Assistant United States Attorneys, Portland, OR, for the plaintiff-appellant.

Terry Kolkey, Ashland, OR, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon, Garr M. King, Senior District Judge, Presiding. D.C. No. 06-cr-00434-KI-1.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, DIARMUID F. O'SCANNLAIN, SIDNEY R. THOMAS, SUSAN P. GRABER, M. MARGARET McKEOWN, KIM McLANE WARDLAW, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD A. PAEZ, and CONSUELO M. CALLAHAN, Circuit Judges.

OPINION

CALLAHAN, Circuit Judge:

The district court dismissed the indictment against Edmundo Lopez-Velasquez for illegal reentry on the ground that the immigration judge ("IJ") presiding over his deportation hearing had a duty to inform him of discretionary relief under § 212(c) of the Immigration and Nationality Act. See 8 U.S.C. § 1182(c) (1994) (repealed 1996). Under the law as understood at the time of the hearing, Lopez-Velasquez was four years short of the mandatory seven-year domicile requirement for § 212(c) relief. Lopez-Velasquez contends that his domicile should have been calculated differently, in light of a case we decided a year after his hearing. But, even if we were to accept the calculation suggested by Lopez-Velasquez, he was still eight months short of eligibility.

We hold that an IJ's duty is limited to informing an alien of a reasonable possibility that the alien is eligible for relief at the time of the hearing. While there may be narrow exceptions where an IJ has a duty to inform an alien of relief for which the alien will become eligible imminently, or where subsequent precedent renders a deportation order invalid, those circumstances are not presented here. Accordingly, we reverse and remand.

I. Background

The facts are not in dispute. Lopez-Velasquez, a native and citizen of Mexico, illegally entered the United States during the early 1980s and held a number of seasonal agricultural jobs in Oregon. In November 1986, Congress passed the Immigration Reform and Control Act of 1986 ("IRCA"), which, among other things, created a path to lawful permanent residency for two categories of aliens. See Pub.L. No. 99-603, 100 Stat. 3359. One category, which applied to Lopez-Velasquez, was called the Special Agricultural Worker ("SAW") program and was available to aliens who were already working in the United States and had performed at least 90 man-days of agricultural labor during the year ending May 1, 1986. 8 U.S.C. § 1160.¹ Lopez-Velasquez applied for the SAW program in October 1987, was accepted, and was granted temporary resident status. His status was adjusted to lawful permanent resident ("LPR") in December 1990. Lopez-Velasquez was convicted three years later in state court for delivery of a controlled substance and served eight months in prison. The INS initiated deportation proceedings based on the conviction. On February 10, 1994, Lopez-Velasquez appeared without counsel before an IJ in a group deportation proceeding and conceded removability. The IJ was informed of the dates on which Lopez-Velasquez received temporary and permanent resident status under SAW. The IJ asked the INS attorney whether he was aware of any relief available to Lopez-Velasquez and the others, and the attorney responded that there did not appear to be any. Lopez-Velasquez was ordered deported to Mexico. The IJ informed Lopez-Velasquez and the others of their right to appeal the decision by filing writtennotice. Lopez-Velasquez waived his right to appeal and was deported.

Lopez-Velasquez reentered the country at some point and, in 2003, was again deported after pleading guilty to two counts of illegal reentry. Lopez-Velasquez again reentered, and immigration proceedings and the instant criminal case ensued.

In the immigration proceedings, the government charged Lopez-Velasquez with removability. In response, Lopez-Velasquez filed a motion to reopen his 1994 deportation proceedings, arguing that he was denied due process because the IJ did not inform him about the possibility for relief under § 212(c). At the time, § 212(c) provided discretionary relief from deportation for LPRs who had seven consecutive years of "lawful unrelinquished domicile" in the United States and had not served more than five years' imprisonment for one or more aggravated felonies. 8 U.S.C. § 1182(c) (1994). The government moved to reinstate the 1994 deportation order, and the IJ granted the motion. The BIA affirmed, and Lopez-Velasquez appealed. In an unpublished decision, we denied his petition for review. Lopez-Velasquez v. Mukasey, 308 Fed.Appx. 236, 237 (9th Cir.2009) (unpublished).

Meanwhile, Lopez-Velasquez was indicted on one count of illegal reentry under 8 U.S.C. § 1326. He moved to dismiss the indictment on the same basis he argued in his immigration proceedings, i.e., that he was denied due process because the IJ presiding over his 1994 deportation hearing did not inform him about the possibility of § 212(c) relief. The district court agreed, holding that there was a reasonable possibility Lopez-Velasquez was entitled to such relief. Under the law at the time of the deportation hearing, the seven-year domicile requirement for § 212(c) relief was defined as beginning when an alien was granted LPR status, and Lopez-Velasquez had been an LPR for just over three years. But the district court determined that Lopez-Velasquez had a colorable argument that, instead, he began to accrue time when he applied for the SAW program or when SAW was enacted. Lopez-Velasquez would have been eight months short of eligibility even if domicile had begun when he applied for the SAW program; however, the district court concluded that Lopez-Velasquez could have accrued the remaining time during an appeal of the IJ's decision to the BIA.

The district court dismissed the indictment on the basis that the IJ's failure to inform Lopez-Velasquez of the possibility of § 212(c) relief invalidated the deportation order underlying the indictment. On the government's appeal, a three-judge panel of our court affirmed. United States v. Lopez-Velasquez, 568 F.3d 1139, 1146 (9th Cir.2009). We subsequently granted rehearing en banc. United States v. Lopez-Velasquez, 599 F.3d 925 (9th Cir.2010).

II. Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291. We review a collateral attack to a deportation order de novo. United States v. Ahumada-Aguilar, 295 F.3d 943, 947(9th Cir.2002).

III. Analysis

This case concerns the extent of an IJ's duty to inform aliens of their eligibility for relief from removal. Immigration regulations require an IJ to inform an alien of "apparent eligibility" for relief. 8 C.F.R. § 1240.11(a)(2). We have interpreted "apparent eligibility" to mean "where the record, fairly reviewed by an individual who is intimately familiar with the immigration laws—as IJs no doubt are—raises a reasonable possibility that the petitioner may be eligible for relief."Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir.1989). We have repeatedly held that an IJ's failure to so advise an alien violates due process and can serve as the basis for a collateral attack to a deportation order where, as here, the order is used as the predicate for an illegal reentry charge under § 1326. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir.2004).²

Lopez-Velasquez does not actually claim that he was eligible for § 212(c) relief under the applicable law at the time of his deportation hearing; he unquestionably was not. Instead, he argues that he could have made a colorable argument for interpreting the seven-year domicile requirement as starting when he applied for SAW, which would give him six years and four months of domicile at the time of the hearing. Lopez-Velasquez argues he was close enough to eligibility that the IJ should have considered that he could become eligible by accruing the additional time during an appeal to the BIA.³

Our evaluation of Lopez-Velasquez's claim that the IJ had a duty to advise him of the possibility of relief under § 212(c) is informed by the history of the law governing eligibility for such relief. Prior to its repeal in 1996, § 212(c) granted the Attorney General discretion to waive the exclusion of LPRs "who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years," as long as the LPRs had not served an imprisonment term of five years or more for one or more aggravated felonies. 66 Stat. 187 (1952 INA) (later codified as 8 U.S.C. § 1182(c) (repealed 1996)). Although the statute on its face applied only to aliens in exclusion proceedings, the INS extended relief under § 212(c) to aliens in deportation proceedings. Castillo-Felix v. INS, 601 F.2d 459, 462 (9th Cir.1979).⁴

In our 1979 opinion in Castillo-Felix, we determined what it means to have "lawful unrelinquished domicile" for purposes of § 212(c) relief. There, the petitioner argued that an alien could accrue lawful domicile prior to becoming an LPR.Id. at 463. We disagreed, reasoning that the INS had always interpreted domicile as beginning with LPR status, its interpretation was entitled to great deference, and its position was not inconsistent with the statutory mandate or congressional policy. Id. at 464-67. We held that "to be eligible for [§ 212(c) ] relief, aliens must accumulate seven years of lawful unrelinquished domicile after their admission for permanent residence." Id. at 467.

The 1986 SAW provisions provided a path to LPR status and made special exceptions to other immigration provisions. 8 U.S.C. § 1160. For...