United States v. Alberto Maldonado-Melgoza , 642 F. App'x 737 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50574
Plaintiff - Appellee, D.C. No. 3:14-cr-02463-LAB-1
v.
MEMORANDUM*
ALBERTO MALDONADO-MELGOZA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted March 10, 2016
Pasadena, California
Before: MURPHY,** PAEZ, and NGUYEN, Circuit Judges.
Alberto Maldonado-Melgoza challenges his conviction for being a removed
alien found in the United States in violation of 8 U.S.C. § 1326(a) and (b). We
reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
“Because the underlying removal serves as a predicate element of an illegal
reentry offense under § 1326, a defendant charged with that offense may
collaterally attack the removal order under the due process clause.” United States
v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). In order to collaterally
attack the order, however, the defendant must meet the criteria laid out in 8 U.S.C.
§ 1326(d). The defendant must demonstrate 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.
Id. We hold that Maldonado-Melgoza has met these requirements and can
therefore challenge his underlying removal order.
Maldonado-Melgoza was removed on the basis of his California conviction
for first-degree residential burglary, which the immigration judge determined was
an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). In Dimaya v. Lynch, we
recently held that 18 U.S.C. § 16(b), as incorporated by 8 U.S.C. § 1101(a)(43)(F),
is unconstitutionally vague. 803 F.3d 1110, 1120 (9th Cir. 2015). The government
concedes that in light of Dimaya v. Lynch, Maldonado-Melgoza satisfies
§ 1326(d)(3)’s fundamental unfairness requirement. See United States v.
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Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). The government maintains
that Maldonado-Melgoza nonetheless cannot challenge his underlying removal
order because he failed to meet the requirements of § 1326(d)(1) and (2).
However, the government waived this argument by failing to raise it before the
district court. See Walsh v. Nevada Dep’t of Human Res., 471 F.3d 1033, 1037
(9th Cir. 2006). Accordingly, Maldonado-Melgoza may collaterally attack his
removal order.
Intervening changes in law that render a removal order invalid are fully
retroactive for purposes of challenging a § 1326 prosecution. United States v.
Aguilera-Rios, 769 F.3d 626, 633 (9th Cir. 2014). “Otherwise, an individual who
had the right to remain here as a legal resident—and to return to this country if he
leaves—but was removed as a result of a legal error, would be subject to criminal
conviction and incarcerated for returning.” Id. Because Dimaya v. Lynch
invalidated the basis for Maldonado-Melgoza’s removal order, we reverse his
conviction.
REVERSED.
The mandate shall issue forthwith.
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