United States v. Lopez-Velasquez ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-30241
Plaintiff-Appellant,
v.  D.C. No.
CR-06-00434-1-KI
EDMUNDO LOPEZ-VELASQUEZ,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
July 9, 2008—Portland, Oregon
Filed June 23, 2009
Before: Harry Pregerson and Stephen Reinhardt,
Circuit Judges, and Lyle E. Strom,* District Judge.
Opinion by Judge Reinhardt
*The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
7561
7564 UNITED STATES v. LOPEZ-VELASQUEZ
COUNSEL
Karin J. Immergut, Esq., United States Attorney, Johnathan S.
Haub, Esq., Kelly A. Zusman, Esq., Assistant United States
Attorneys, Portland, Oregon, for the plaintiff-appellant.
Terry Kolkey, Esq., Ashland, Oregon, for the defendant-
appellee.
OPINION
REINHARDT, Circuit Judge:
Edmundo Lopez-Velasquez waived his right to appeal and
was deported in 1994 in a group proceeding in which the
UNITED STATES v. LOPEZ-VELASQUEZ 7565
immigration judge (“IJ”) did not advise him of the availability
of relief from deportation under section 212(c) of the Immi-
gration 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(repealed 1996).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 undocu-
mented 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 ser-
vices 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 resi-
dent 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,
7566 UNITED STATES v. LOPEZ-VELASQUEZ
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 chil-
dren when he was arrested for delivery of a controlled sub-
stance 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 rep-
resented 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 resi-
dence 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.
1
The Immigration and Naturalization Service was abolished on March
1, 2003 pursuant to section 471 of the Homeland Security Act of 2002,
Pub. L. 107-296, 116 Stat. 2135 (2002), which created the Department of
Homeland Security.
2
The government’s Opening Brief states that Lopez-Velasquez appeared
for a deportation hearing on or around February 12, 1994, but that appears
to be the date of deportation.
UNITED STATES v. LOPEZ-VELASQUEZ 7567
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 (1987). To succeed in such a collateral attack, the
defendant must demonstrate that: (1) he exhausted any admin-
istrative 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 proceed-
ing 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 opportu-
nity for judicial review. See United States v. Pallares-Galan,
359 F.3d 1088, 1096 (9th Cir. 2004). The defendant’s waiver
3
Lopez-Velasquez was also deported in 2003 after pleading guilty to
two counts of illegal entry in violation of 8 U.S.C. § 1325(a), however,
that deportation is not deemed to be material by either party.
7568 UNITED STATES v. LOPEZ-VELASQUEZ
cannot be “considered” or “intelligent” if “the record contains
an inference that [the alien is] eligible for relief from deporta-
tion,” 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.
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 pro-
ceeding, 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 eli-
gibility 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 fel-
ony. 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
4
Section 212(c) was subsequently repealed by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), but relief
under the section remains available for aliens who pled guilty prior to the
enactment of IIRIRA. INS v. St. Cyr, 533 U.S. 289, 326 (2001). Our recent
en banc decision in Abebe v. Mukasey, 554 F.3d 1203, 1207 (9th Cir.
2009) does not affect this case, as it explicitly did not undermine the
authority of the BIA to grant § 212(c) relief from deportation.
UNITED STATES v. LOPEZ-VELASQUEZ 7569
requirement and thus the IJ did not violate Lopez-Velasquez’s
due process rights by failing to inform him of his possible eli-
gibility for § 212(c) relief.5
[1] 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 regula-
tions therefore require that, “where the record, fairly reviewed
by an individual who is intimately familiar with the immigra-
tion laws — as IJs no doubt are — raises a reasonable possi-
bility 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 vol-
untary. See id. We have held that the record lacked an infer-
ence 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 sug-
gest any basis for fear of returning to Mexico).
[2] The record in Lopez-Velasquez’s proceeding raised a
reasonable possibility of eligibility for § 212(c) relief. As the
5
The government does not contend that Lopez-Velasquez had only three
years and two months of legal residency for § 212(c) relief under Castillo-
Felix v. INS, 601 F.2d 459 (9th Cir. 1979), the applicable law at the time,
most likely recognizing that IRCA has changed the rule governing the
computation of the length of residency for SAW beneficiaries and others.
As explained below, we so held the year after Lopez-Velasquez’s deporta-
tion proceeding. See Ortega de Robles v. INS, 58 F.3d 1355, 1360-61 (9th
Cir. 1995).
7570 UNITED STATES v. LOPEZ-VELASQUEZ
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 agri-
cultural 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 amnesty. February 1, 1986 is, of
course, more than eight years before the date of Lopez-
Velasquez’s deportation hearing.
[3] The likely length of Lopez-Velasquez’s presence in the
United States, along with changes in immigration laws
brought about by IRCA and its amnesty programs, made it
reasonably possible that Lopez-Velasquez in fact had satisfied
the seven year requirement of “lawful unrelinquished domi-
cile” necessary to qualify for § 212(c) relief. Although in
Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979), we deter-
mined that an alien must have permanent residency to estab-
lish such “lawful unrelinquished domicile,” the intervening
enactment of IRCA’s amnesty programs raised the reasonable
possibility that Castillo-Felix no longer remained controlling
law. Indeed, a year after Lopez-Velasquez’s removal proceed-
ing, we held that IRCA superseded Castillo-Felix. See Ortega
de Robles v. INS, 58 F.3d 1355, 1360 (9th Cir. 1995). We
concluded that “lawful unrelinquished domicile” includes the
period of temporary residency granted by the § 245A general
amnesty provision of the IRCA, because during that time an
alien is lawfully and physically present and intends to remain
in the United States. See id. at 1359-61.
[4] We had no reason to consider in Ortega de Robles when
“lawful unrelinquished domicile” began for purposes of the
UNITED STATES v. LOPEZ-VELASQUEZ 7571
SAW program.6 Lopez-Velasquez could reasonably have
argued, however, at the time of his removal proceeding, as he
does now, that it began as far back as at the date of IRCA’s
enactment for agricultural workers already in the United
States who could allege a nonfrivolous claim of SAW eligibil-
ity. Such workers could not be excluded or deported after the
date of IRCA’s passage and could be given temporary
employment authorization until June 1, 1987, when they
could apply for SAW amnesty. 8 U.S.C. § 1160(d).7 Under
this calculation, for § 212(c) purposes Lopez-Velasquez’s
“lawful unrelinquished domicile” could have begun on
November 6, 1986, the date of IRCA’s enactment. He there-
fore would have had over seven years of residency at the time
of his removal proceeding in February 1994.
We need not decide, however, whether Lopez-Velasquez
could have prevailed on his argument that his “lawful unrelin-
quished domicile” began at IRCA’s enactment or at a later
date that would have permitted him to accumulate the requi-
6
The trigger date for “lawful unrelinquished domicile” under SAW and
§ 245A amnesty might indeed be more favorable to SAW beneficiaries
than to those applying for § 245A amnesty. Under § 245A of IRCA, the
alien was required to establish that he had “resided in the United States in
an unlawful status” prior to his application for amnesty, thus foreclosing
him from also arguing that he was in lawful status previously for purposes
of § 212(c) relief. See Castellon-Contreras v. INS, 45 F.3d 149, 154 (7th
Cir. 1995). By contrast, the SAW amnesty provision required only that the
alien establish that he had “resided in the United States.” Compare 8
U.S.C. § 1255a(a)(2)(A) (1994) with 8 U.S.C. § 1160(a)(1)(B) (1994).
7
The government argues that, even if his residency began at the time of
IRCA’s enactment, Lopez-Velasquez relinquished his continual residency
because he did not file a SAW application on June 1, 1987, the first day
on which an application could be filed. After June 1, 1987, however, he
could have presented a SAW application at any time to avoid removal, see
8 U.S.C. § 1160(d)(2), and he in fact did so a few months later. The filing
of the application served to preclude him from being excluded or deported,
and granted him authorization to work in the United States. See id. At the
least, there was an inference of residency that required the IJ to give notifi-
cation of the possibility of eligibility for § 212(c) relief.
7572 UNITED STATES v. LOPEZ-VELASQUEZ
site seven years. We need conclude only that, had Lopez-
Velasquez been informed of the potential availability of
§ 212(c) relief, he could have appealed the IJ’s decision. This
opportunity would have been invaluable to him because, at
the time of his hearing, for purposes of § 212(c) relief, “law-
ful unrelinquished domicile” continued to accumulate until
“the Board render[ed] its decision in the case upon appeal
. . . .” Matter of Lok, 18 I & N Dec. 101, 105 (B.I.A. 1981),
aff’d, Lok v. INS, 681 F.2d 107 (2d Cir. 1982); Foroughi v.
I.N.S., 60 F.3d 570 (9th Cir. 1995).8 At the time of his
removal proceedings, Lopez-Velasquez had, even according
to the government, already accrued six years and four months
of “lawful unrelinquished domicile.” As the Department of
Justice noted, prior to adopting procedural reforms in 2002,
the BIA appeal process took a long time and cases “routinely
remained pending before the [BIA] for more than two years,
and some [had] taken more than five years to resolve.” Board
of Immigration Appeals: Procedural Reforms to Improve
Case Management, 67 Fed. Reg. 54,878, 54,879 (Aug. 26,
2002). Whether or not Lopez-Velasquez prevailed on his
appeal on his theory regarding the starting date of his lawful
unrelinquished domicile, he would, during the pendency of
that appeal, have been able to accumulate the eight months
that he was missing according to the government, and thus
would have accrued the requisite seven years of residency that
would have made him eligible for § 212(c) relief. See United
States v. Ahumada-Aguilar, 295 F.3d 943, 951-52 (9th Cir.
2002) (holding that alien was prejudiced by his waiver of
appeal because he would have accumulated the final ten
months towards his residency requirement for § 212(c) relief
during his appeal); United States v. Jimenez-Marmolejo, 104
F.3d 1083, 1085-86 (9th Cir. 1996) (holding that an alien who
was two months away from the seven year mark at the time
8
When Congress repealed § 212(c) relief under IIRIRA and replaced it
with cancellation of removal, it specified that the period of residency that
is required for that relief ends when the alien is served with a notice to
appear or commits a certain criminal offense. 8 U.S.C. § 1229b(d)(1).
UNITED STATES v. LOPEZ-VELASQUEZ 7573
of deportation proceedings would have become eligible for
§ 212(c) had he appealed).
[5] Given the changes in immigration law, the length of
Lopez-Velasquez’s residency in the United States, and his
proximity, under the government’s theory, to having accumu-
lated seven years of temporary residency under SAW, the IJ
should have recognized a “reasonable possibility” that Lopez-
Velasquez might be eligible for § 212(c) relief at the time of
the proceedings. Had the IJ informed him of such a possibil-
ity, Lopez-Velasquez could have appealed and, even if he had
lost, would have accumulated the remaining time necessary to
establish the seven years residency for § 212(c) relief.
Because the IJ failed to advise him of the possibility of eligi-
bility, or even of the existence of such relief, Lopez-
Velasquez’s waiver of his right to appeal was defective and
he was improperly deprived of the opportunity for judicial
review. See, e.g., Pallares-Galan, 359 F.3d at 1103; United
States v. Leon-Paz, 340 F.3d 1003, 1007 (9th Cir. 2003).
***
[6] We also conclude that Lopez-Velasquez’s prior depor-
tation order was “fundamentally unfair” under § 1326(d)(3)
because he suffered prejudice as a result of his defective
deportation proceeding. See, e.g., Pallares-Galan, 359 F.3d at
1103. To demonstrate prejudice, Lopez-Velasquez need only
show that he had “plausible grounds for relief.” Jimenez-
Marmolejo, 104 F.3d at 1086. The requirement to show such
“plausible grounds” does not present a very high hurdle, given
that prior to IIRIRA, more than half of § 212(c) applications
resulted in the granting of relief by the BIA. See INS v. St.
Cyr, 553 U.S. 289 & n.5.
In determining whether to exercise its discretion to grant a
§ 212(c) petition, the BIA considers “all the facts and circum-
stances of a particular case, taking into account the social and
humane considerations presented in an applicant’s favor and
7574 UNITED STATES v. LOPEZ-VELASQUEZ
balancing them against the adverse factors that evidence the
applicant’s undesirability as a permanent resident.” Yepes-
Prado v. INS, 10 F.3d 1363, 1365-66 (9th Cir. 1993). The
favorable factors include: “1) family ties within the United
States; 2) residence of long duration in this country (particu-
larly when residence began at a young age); 3) hardship to the
petitioner or petitioner’s family if relief is not granted; 4) ser-
vice in the United States armed forces; 5) a history of employ-
ment; 6) the existence of business or property ties; 7)
evidence of value and service to the community; 8) proof of
rehabilitation if a criminal record exists; 9) other evidence
attesting to good character.” Id. at 1366. Negative factors
include: “1) the nature and underlying circumstances of the
exclusion or deportation ground at issue; 2) additional viola-
tions of the immigration laws; 3) the existence, seriousness
and recency of any criminal record; 4) other evidence of bad
character or the undesirability of the applicant as a permanent
resident.” Id.[7] Lopez-Velasquez could have offered many facts and
circumstances favoring the discretionary grant of § 212(c)
relief, including nearly 13 years of residency and employment
in the United States, and hardship to him, his United States
citizen wife, and two young United States citizen children. He
had only one criminal conviction, which resulted in an eight
months sentence. Lopez-Velasquez has more than met his
burden of demonstrating plausible grounds for relief, and the
government has not contended otherwise.
III. Conclusion
We conclude that Lopez-Velasquez’s prior deportation was
“fundamentally unfair” and cannot serve as the basis for his
illegal reentry conviction because he was prejudiced by the
IJ’s failure to inform him of his possible eligibility for
§ 212(c) relief. We therefore affirm the district court’s dis-
UNITED STATES v. LOPEZ-VELASQUEZ 7575
missal of his indictment for illegal reentry under 8 U.S.C.
§ 1326.9AFFIRMED.
9
In Lopez-Velasquez v. Mukasey, 308 Fed. App’x 236 (9th Cir. 2009),
a memorandum disposition in which we reviewed two administrative
orders in connection with a pending deportation proceeding, we rejected
a collateral attack on Lopez-Velasquez’s 1994 deportation order. The peti-
tion before us then did not, however, raise the same legal or factual ques-
tions as does the present appeal. First, in challenging the prior deportation
order in a reinstated deportation proceeding, the applicable standard of
review for the collateral challenge is “gross miscarriage of justice.” Id.;
Garcia de Rincon v. DHS, 539 F.3d 1133, 1138 (9th Cir. 2008). Here,
because this appeal arises in a criminal case, the more lenient standard in
§ 1326(d) applies — “fundamental unfairness,” which is construed as sim-
ply a violation of due process such as a failure to notify an alien of poten-
tially available discretionary relief. See Alvarenga-Villalobos v. Ashcroft,
271 F.3d 1169, 1173 (9th Cir. 2001) (explaining difference in standards
applied to collateral attacks in non-criminal deportation cases and in crimi-
nal prosecutions); Ramirez-Molina v. Ziglari, 436 F.3d 508, 514 n.9 (5th
Cir. 2006) (noting difference in case law between a collateral attack in the
context of a petition for review of a reinstatement decision and criminal
prosecution for illegal reentry). Second, in the memorandum disposition
we applied Castillo-Felix which had not been overruled at the time of
Lopez-Velasquez’s hearing and assumed that he lacked three years and
nine months of lawful unrelinquished domicile; here, however, the gov-
ernment concedes that, under Ortega de Robles, which it acknowledges to
be controlling, Lopez-Velasquez was short of the requisite seven years by
only eight months. Finally, we did not consider in the memorandum dispo-
sition that at the time of his removal proceedings Lopez-Velasquez had a
reasonable possibility of eligibility for § 212(c) relief on the basis of an
unsettled construction of the term “lawful unrelinquished domicile,” and
that, in any event, he would have accumulated the remaining part of the
requisite seven years while pursuing his argument on appeal. All three of
these considerations require that in assessing the constitutionality of the
prior deportation proceedings for purposes of this criminal prosecution, we
reach a different result than that which we previously reached with respect
to our review of a purely administrative proceeding. To the extent that any
dicta in the memorandum disposition purport to resolve any issues pre-
sented in this entirely dissimilar type of proceeding, we are not bound by
them.