United States v. Cesar Pulido-Estrada , 624 F. App'x 526 ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 08 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50290
Plaintiff - Appellee, D.C. No. 2:12-cr-00032-DDP-1
v.
MEMORANDUM*
CESAR PULIDO-ESTRADA, AKA Cesar
Ortiz, AKA Cesar Pulido, AKA Cesar
Villa,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted August 26, 2014
Submission Vacated August 29, 2014
Resubmitted August 18, 2015
Pasadena, California
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges and GLEASON,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
***
The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
Cesar Pulido-Estrada appeals the district court’s denial of his motion to
dismiss his indictment for illegal reentry. On appeal, the government has
abandoned its arguments regarding Pulido-Estrada’s conviction for grand theft auto
under Cal. Penal Code § 487(d), conceding that such conviction does not qualify as
an “aggravated felony” under 8 U.S.C. § 1101(a)(43). We therefore consider only
whether the district court’s order can be affirmed under the government’s argument
regarding Pulido-Estrada’s conviction for taking a vehicle without consent under
Cal. Veh. Code § 10851(a).
In order to prevail on his collateral attack to his order of removal, Pulido-
Estrada must show that: (1) he exhausted his administrative remedies; (2) the
deportation 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. See 8 U.S.C. § 1326(d); United States v. Vidal-Mendoza,
705 F.3d 1012, 1015 (9th Cir. 2013).
I
The first two elements are no longer seriously contested on appeal.
Although Pulido-Estrada elected not to appeal his removal order to the Board of
Immigration Appeals, he did so only after the immigration judge (“IJ”) told him
that there was no relief available to him. The IJ based this conclusion on the
2
theory that Pulido-Estrada’s section 487(d) conviction qualified as an aggravated
felony, thus rendering him ineligible for certain forms of relief. The government
now concedes that the section 487(d) conviction was not an aggravated felony, but
it has advanced no alternative argument for why—on the basis of the record before
him—the IJ was still correct to state that Pulido-Estrada was ineligible for relief
from removal.1 We must therefore conclude that, without the section 487(d)
conviction, the IJ’s statement that Pulido-Estrada was not eligible for relief was
made in error. In light of this error, Pulido-Estrada’s waiver of his right to appeal
was not sufficiently “considered and intelligent,” which thus excuses his failure to
exhaust and satisfies the first two elements of his § 1326(d) collateral attack. See
Vidal-Mendoza, 705 F.3d at 1015–16 (internal quotation marks omitted).
II
Under the third element, Pulido-Estrada must show that defects in the
removal proceedings violated his due process rights and that he suffered prejudice
as a result of such defects. See id. The government argues that he cannot show
prejudice from any error in the analysis of his section 487(d) conviction, because
1
Instead, the government has limited its argument to whether Pulido-Estrada
can demonstrate prejudice in light of his section 10851(a) conviction, discussed
infra.
3
his additional section 10851(a) conviction also qualifies as an aggravated felony,
thus rendering him ineligible for relief from removal.
Although a conviction that was not alleged in the Notice to Appear may be
used to deny an alien discretionary relief from removal, it may not serve as the
basis for the underlying order of removal itself. See United States v. Gonzalez-
Valerio, 342 F.3d 1051, 1054–56 (9th Cir. 2003); Chowdhury v. INS, 249 F.3d
970, 974–75 (9th Cir. 2001). The only basis for removal alleged in Pulido-
Estrada’s Notice to Appear was that his section 487(d) conviction qualified as an
aggravated felony. Because the government has abandoned that argument, Pulido-
Estrada was not removable as charged. It was prejudicial for him to be removed in
such circumstances. See United States v. Aguilera-Rios, 769 F.3d 626, 637 (9th
Cir. 2014); United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006).2
REVERSED.3
2
We do not address Pulido-Estrada’s arguments regarding his eligibility for
relief under INA § 212(h).
3
The government’s Motion for Judicial Notice, filed with this court on
August 21, 2014, is denied.
4