U.S. v. Lopez-Velasquez

• Decision Date: 23 June 2009
• Docket Number: No. 07-30241.,07-30241.
• Citation: 568 F.3d 1139
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Edmundo LOPEZ-VELASQUEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

568 F.3d 1139

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 July 9, 2008.

Filed June 23, 2009.

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

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

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

Before: HARRY PREGERSON and STEPHEN REINHARDT, Circuit Judges, and LYLE E. STROM,^* District Judge.

REINHARDT, Circuit Judge:

Edmundo Lopez-Velasquez waived his right to appeal and was deported in 1994 in a group proceeding in which the immigration judge ("IJ") did not advise him of the availability of relief from deportation under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (repealed 1996). He had a United States citizen wife and two young United States citizen children at the time, and would surely have been a strong candidate for this discretionary relief had he applied for it.

Over ten years later, in 2006, Lopez-Velasquez was indicted for illegal reentry in violation of 8 U.S.C. § 1326. The district court dismissed the indictment, holding that the 1994 deportation order was invalid due to the IJ's failure to inform him of his apparent eligibility for § 212(c) relief. We affirm.

I. Background

In 1986, as part of the Immigration Reform and Control Act ("IRCA"), Congress enacted the Special Agricultural Workers program ("SAW"), a one-time amnesty program to stabilize the agricultural workforce by legalizing undocumented aliens already working in agriculture. See 8 U.S.C. § 1160. Through the SAW program, an alien who had resided in the United States and performed seasonal agricultural services for at least 90 man-days during the 12-month period ending on May 1, 1986, could obtain temporary legal resident status, which would automatically adjust to permanent resident status after some period of time. 8 U.S.C. § 1160(a). The SAW statute specified that the applications would be accepted during the 18-month period beginning on June 1, 1987 and ending on November 30, 1988. 8 U.S.C. § 1160(a)(1)(A); 8 C.F.R. § 210.2(c)(1).

One of the beneficiaries of the SAW program was Edmundo Lopez-Velasquez, a native and citizen of Mexico, who came to the United States in the early 1980s and held a number of seasonal agricultural jobs in Oregon. He applied for legal status under the SAW program in October of 1987, and his application was granted in March of the following year.

In 1987, Lopez-Velasquez married a United States citizen, with whom he eventually had two children, both of whom are United States citizens. He was living with his wife and children when he was arrested for delivery of a controlled substance in 1993. He pled guilty and was sentenced to eight months in state prison. The Immigration and Naturalization Service ("INS")¹ initiated deportation proceedings based on this conviction.

On February 10, 1994, Lopez-Velasquez was brought before an IJ for a group deportation hearing.² He was not represented by counsel. The INS attorney, after reviewing Lopez-Velasquez's file, informed the IJ that Lopez-Velasquez gained temporary residence in October of 1987 and permanent residence in December of 1990. After asking each alien about the circumstances of his case, the IJ asked the INS attorney whether he was "aware of any form of relief available for any [of] these individuals," and the attorney responded, "I don't believe so[,] Judge." The IJ then ordered that all aliens at the hearing be deported to Mexico without advising Lopez-Velasquez of any potential eligibility for relief. The IJ also told the members of the group that they had the right to appeal the decision by filing a written notice of appeal within ten days. Lopez-Velasquez apparently waived his right to appeal, and was deported. At that time, his American citizen daughter was five years old and his American citizen son was four.

Lopez-Velasquez subsequently returned to the United States and more than ten years later, in October 2006, was indicted for knowingly and unlawfully reentering in violation of 8 U.S.C. § 1326.³ He moved to dismiss the indictment on the ground that the original 1994 deportation order was invalid because the IJ failed to inform him of the availability of § 212(c) relief, and thus violated his due process rights. The district court granted the motion. We review de novo its dismissal of the indictment based on due process defects in the underlying deportation proceeding, see, e.g., United States v. Ahumada-Aguilar, 295 F.3d 943, 947 (9th Cir. 2002), and affirm.

II. Analysis

Judicial review of a prior deportation order is appropriate "in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense." United States v. Mendoza-Lopez, 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). To succeed in such a collateral attack, the defendant must demonstrate that: (1) he exhausted any administrative remedies available to him to appeal the removal order, (2) the underlying proceedings at which the order was issued improperly deprived him of the opportunity for judicial review, and (3) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d).

We have held that where the defendant's waiver of the right to appeal a removal order in the underlying removal proceeding was not "considered and intelligent," he satisfies the first two requirements of § 1326(d) because he was effectively deprived of the right to administrative appeal and the opportunity for judicial review. See United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir.2004). The defendant's waiver cannot be "considered" or "intelligent" if "the record contains an inference that [the alien is] eligible for relief from deportation," but the IJ fails to "advise [him] of this possibility and give him the opportunity to develop the issue." Id. (internal quotation marks omitted); Mendoza-Lopez, 481 U.S. at 840, 107 S.Ct. 2148. As to the third requirement, an underlying removal order is fundamentally unfair if "(1) [a defendant's] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir.2004) (internal quotation marks and citations omitted).

The district court held that Lopez-Velasquez's waiver of his right to appeal the 1994 deportation order was invalid because the IJ failed to advise him of the possibility of his eligibility for relief under section 212(c) of the INA. At the time of the deportation, § 212(c) authorized the Attorney General to grant discretionary relief from deportation to permanent resident aliens who had established seven consecutive years of "lawful unrelinquished domicile" and had not served more than a five-year term of imprisonment for an aggravated felony. 8 U.S.C. § 1182(c) (1994).⁴

The government concedes that Lopez-Velasquez would have been eligible for the exercise of the Attorney General's discretion but for the seven-year legal residency requirement for § 212(c) relief. It argues, however, that because only six years and four months had transpired from the date that Lopez-Velasquez submitted his SAW application to the date of his deportation hearing, he had not met the residency requirement and thus the IJ did not violate Lopez-Velasquez's due process rights by failing to inform him of his possible eligibility for § 212(c) relief.⁵

The government errs by framing the pertinent question as whether Lopez-Velasquez was definitively eligible for § 212(c) relief at the time of his hearing before the IJ. Aliens in removal proceedings will often "not have the wherewithal to make a complete showing of eligibility." Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir.1989). The INA regulations therefore require that, "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 [alien] may be eligible for relief, the IJ must advise [him] of this possibility and give him the opportunity to develop the issue." Id. (emphasis added). Where "the record contains an inference that [the alien] is eligible for relief from deportation," but the IJ fails to "advise [him] of this possibility," United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000) (internal quotation mark omitted), the alien's waiver of his right to appeal is not considered or voluntary. See id. We have held that the record lacked an inference of eligibility of relief only when the possibility of relief was remote. See, e.g., Valencia v. Mukasey, 548 F.3d 1261 (9th Cir.2008) (holding that the IJ did not need to advise Valencia of the eligibility for asylum when she did not suggest any basis for fear of returning to Mexico).

The record in Lopez-Velasquez's proceeding raised a reasonable possibility of eligibility for § 212(c) relief. As the government has conceded, the only doubt with regard to Lopez-Velasquez's eligibility for relief was whether he had accumulated seven years of residency in the United States. As to that issue, the record, as recited by the INS attorney at his removal proceeding, showed that Lopez-Velasquez gained temporary residency in October of 1987 when he applied for the SAW program and his application was approved. This fact raised the inference that he had been living in the country for over seven years, as he was required to have performed agricultural services in the United States for at least 90 man-days prior to May 1, 1986, i.e., at least since February 1, 1986, in order to be eligible for SAW...