United States v. Vidal–Mendoza

• Decision Date: 15 January 2013
• Docket Number: No. 11–30127.,11–30127.
• Citation: 705 F.3d 1012
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Juan Carlos VIDAL–MENDOZA, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

705 F.3d 1012

UNITED STATES of America, Plaintiff–Appellant,

v.Juan Carlos VIDAL–MENDOZA, Defendant–Appellee.

No. 11–30127.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted May 9, 2012.

Filed Jan. 15, 2013.

Ryan Bounds, Assistant United States Attorney, Portland, OR, for Plaintiff–Appellant.

Susan Russell, Assistant Federal Public Defender, Portland, OR, for Defendant–Appellee.

Appeal from the United States District Court for the District of Oregon, Malcolm F. Marsh, Senior District Judge, Presiding. D.C. No. 3:10–cr–00393–MA–1.

Before: A. WALLACE TASHIMA, RICHARD C. TALLMAN, and SANDRA S. IKUTA, Circuit Judges.

OPINION

IKUTA, Circuit Judge:

The government appeals from the dismissal of an indictment charging Juan Carlos Vidal–Mendoza with illegal reentry after removal. 8 U.S.C. § 1326(a). We conclude that Vidal–Mendoza's underlying removal proceeding was consistent with due process because he was correctly informed that he was ineligible for discretionary relief from removal under the applicable law at the time of his removal hearing. Therefore, we reverse the dismissal of the indictment against Vidal–Mendoza and remand for further proceedings.

I

Vidal–Mendoza is a citizen of Mexico who came to the United States in 1995. In December 1999, he pleaded guilty to third degree rape under Oregon law ¹ and received 180 days in jail, a $1,000 fine, and three years probation. The charge was for sexual contact between Vidal–Mendoza, who was 22 years old at the time, and his then-girlfriend, who was under the age of 16. In 2002, he pleaded guilty for failing to register as a sex offender and was sentenced to two years' probation. He voluntarily left the country some time later.

In February 2004, Border Patrol officers caught Vidal–Mendoza as he reentered the United States. A few days later, he appeared before an immigration judge (IJ) and conceded that he was removable for being present in the United States without having been admitted or paroled. The IJ told Vidal–Mendoza that, because the 1999 Oregon conviction constituted an aggravated felony, he was not entitled to any relief from removal, including voluntary departure. ² The IJ entered a removal order and Vidal–Mendoza waived his right to appeal.

Vidal–Mendoza subsequently returned to the United States. In May 2009, following a second conviction for failing to register as a sex offender, immigration officials reinstated Vidal–Mendoza's 2004 order of removal and again ordered him removed from the country. He returned once more in 2010 and this time he was indicted under 8 U.S.C. § 1326(a) for illegally reentering the country after having been previously removed in 2004.³

In February 2011, Vidal–Mendoza moved to dismiss the indictment on the ground that his 2004 order of removal was invalid because the IJ incorrectly determined that his Oregon statutory rape conviction was an aggravated felony and, as a result, erroneously informed him that he was not eligible for voluntary departure. Vidal–Mendoza argued that his prior rape conviction was not an aggravated felony under Estrada–Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir.2008) (en banc), overruled on other grounds by United States v. Aguila–Montes de Oca, 655 F.3d 915, 928 (9th Cir.2011) (en banc), a case decided four years after the challenged removal proceedings. He also asserted that he was prejudiced by the IJ's error. The district court agreed and dismissed the indictment.

The government timely appealed. It argues that under our recent en banc opinion in United States v. Lopez–Velasquez, 629 F.3d 894 (9th Cir.2010) (en banc), the sufficiency of an IJ's advice during removal proceedings must, with narrow exceptions not applicable here, be measured against the law at the time of the proceeding. The government asserts that the district court erred when it ignored this limitation and dismissed the indictment.

We have jurisdiction under 28 U.S.C. § 1291 and review the district court's dismissal of the indictment de novo. United States v. Cisneros–Resendiz, 656 F.3d 1015, 1018 (9th Cir.2011).

II

We begin by reviewing the legal framework for a collateral challenge to a removal order used as a predicate to § 1326 proceedings.

A

An alien who “has been denied admission, excluded, deported or removed” commits a crime if the alien “enters, attempts to enter, or is at any time found in” the United States. 8 U.S.C. § 1326(a). One of the elements of a conviction under § 1326 is a prior removal order. § 1326(a)(1). Congress has strictly limited an alien's ability to bring a collateral challengeto such an order. See§ 1326(d). Specifically, an alien facing criminal charges under § 1326(a) may not attack the validity of a predicate removal order “unless the alien demonstrates that (1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” § 1326(d).

We have interpreted these narrow criteria broadly. Our flexible construction of § 1326(d) is predicated on our holding that an alien in removal proceedings has a due process right to be informed of “his or her ability to apply for relief from removal.” United States v. Ubaldo–Figueroa, 364 F.3d 1042, 1050 (9th Cir.2004). We derived this obligation from a regulation relating to an alien's application for lawful permanent resident status, which requires an IJ to inform an alien of “of his or her apparent eligibility to apply for [specified discretionary relief]” and to “afford the alien an opportunity to make application during the hearing” for such relief. 8 C.F.R. § 1240.11(a)(2); see Lopez–Velasquez, 629 F.3d at 896.⁴ Because we have held this duty to inform the alien of “apparent eligibility” to apply for certain benefits is mandatory, we have concluded that the IJ's failure to discharge it “is a denial of due process that invalidates the underlying deportation proceeding.” United States v. Muro–Inclan, 249 F.3d 1180, 1183–84 (9th Cir.2001).

Our conclusion that the IJ may violate an alien's due process rights by failing to inform the alien of “apparent eligibility” to apply for specified relief often serves as the linchpin of our analysis of § 1326(d)'s requirements. First, if the IJ has failed to provide information about apparent eligibility for relief, we excuse the alien from demonstrating that “the alien exhausted any administrative remedies that may have been available to seek relief against the [removal] order,” § 1326(d)(1), because we deem the alien's waiver of the right to an administrative appeal to have been insufficiently “considered and intelligent” due to the IJ's error. Ubaldo–Figueroa, 364 F.3d at 1049–50 (internal quotation marks omitted). Second, we have held that the same error also “deprived the alien of the opportunity for judicial review,” § 1326(d)(2), because an alien who is not made aware of “his or her apparent eligibility” for relief, § 1240.11(a)(2), has had no “meaningful opportunity to appeal” the removal and seek such relief. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000); see also United States v. Pallares–Galan, 359 F.3d 1088, 1096 (9th Cir.2004). Finally, we have concluded that an underlying removal order is “fundamentally unfair” for purposes of § 1326(d)(3) if “(1) [an alien's] ... due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” Ubaldo–Figueroa, 364 F.3d at 1048 (internal quotation marks omitted). We have held that the IJ's failure to inform the alien of potential relief in violation of § 1240.11(a)(2) meets the first prong of this test, and an alien may meet the second prong by demonstrating “that he had a ‘plausible’ ground” for that potential relief. Id. at 1050 (quoting Arrieta, 224 F.3d at 1079).

In sum, the IJ's duty under § 1240.11(a)(2) to “inform the alien of his or her apparent eligibility” to apply for certain discretionary relief may be the centerpiece of a collateral challenge under § 1326(d). A violation of this duty (1) excuses the alien from § 1326(d)(1)'s exhaustion requirement; (2) satisfies § 1326(d)(2)'s deprivation of judicial review requirement; and also (3) serves as a due process violation that goes halfway to demonstrating that the removal proceeding was “fundamentally unfair,” as demanded by § 1326(d)(3).

B

The IJ's duty under § 1240.11(a)(2) is of critical importance in analyzing whether Vidal–Mendoza may collaterally attack his removal order under § 1326(d). We recently examined the scope of this duty as an en banc court in Lopez–Velasquez, and are guided by its analysis here.

Lopez–Velasquez involved an alien's collateral challenge to his removal order on the ground that the IJ failed to inform him of his “apparent eligibility” for discretionary relief under former § 212(c) of the Immigration and Nationality Act. Lopez–Velasquez, 629 F.3d at 896 (internal quotation marks omitted). At the time of his removal proceeding, Lopez–Velasquez was “unquestionably” ineligible for § 212(c) relief because “longstanding Ninth Circuit and BIA precedent” provided that he had not accrued seven years of domicile in the U.S. from the date he became a lawful permanent resident, as required by § 212(c). Id. at 897–98. A case decided a year after Lopez–Velasquez's removal proceedings, however, made a “deviation” from our long-established precedent and suggested that an alien could begin accruing time to meet this domicile requirement starting at an earlier date. Id. at 898, 900–01 (noting that, as of the removal hearing, there had been “no suggestion from the BIA or this court” for such a “change in law”). Relying on this post-removal precedent, Lopez–Velasquez argued that the IJ violated the regulatory duty to inform him of his apparent eligibility for §...