United States v. Juan Vidal-Mendoza , 705 F.3d 1012 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-30127
Plaintiff-Appellant,
D.C. No.
v. 3:10-cr-00393-
MA-1
JUAN CARLOS VIDAL-MENDOZA ,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Argued and Submitted
May 9, 2012—Portland, Oregon
Filed January 15, 2013
Before: A. Wallace Tashima, Richard C. Tallman, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
2 UNITED STATES V . VIDAL-MENDOZA
SUMMARY*
Criminal Law
The panel reversed the district court’s dismissal of an
indictment charging illegal reentry after removal in a case in
which the district court concluded that the underlying
removal order was invalid because the immigration judge
incorrectly determined that the defendant’s statutory rape
conviction was an aggravated felony and, as a result,
erroneously informed him that he was not entitled to any
relief from removal.
The panel held that because the defendant lacked apparent
eligibility for relief under the applicable law at the time of his
removal hearing and potentially became eligible for such
relief only through a post-removal “change in law”
precipitated by Estrada-Espinoza v. Mukasey, 546 F.3d 1147(9th Cir. 2008) (en banc), the IJ correctly informed the
defendant that he was not apparently eligible for voluntary
departure at the time of his 2004 removal hearing. The panel
concluded that the removal proceedings therefore did not
violate the defendant’s due process rights and his waiver of
appeal rights was considered and intelligent.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . VIDAL-MENDOZA 3
COUNSEL
Ryan Bounds, Assistant United States Attorney, Portland,
Oregon, for Plaintiff-Appellant.
Susan Russell, Assistant Federal Public Defender, Portland,
Oregon, for Defendant-Appellee.
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 law1 and received 180 days
in jail, a $1,000 fine, and three years probation. The charge
1
“A person commits the crime of rape in the third degree if the person
has sexual intercourse with another person under 16 years of age.” Or.
Rev. Stat. § 163.355 (1999).
4 UNITED STATES V . VIDAL-MENDOZA
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
2
Voluntary departure is not available to an alien who has been convicted
of an aggravated felony. 8 U.S.C. § 1229c(a)(1).
3
Section 1326(a) provides that, any alien who
(1) has been denied admission, excluded, deported, or
removed or has departed the United States while an
order of exclusion, deportation, or removal is
outstanding, and thereafter
UNITED STATES V . VIDAL-MENDOZA 5
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
(2) enters, attempts to enter, or is at any time found in,
the United States, unless
(A) prior to his reembarkation at a place
outside the United States or his application for
admission from foreign contiguous territory,
the Attorney General has expressly consented
to such alien’s reapplying for admission; or
(B) with respect to an alien previously denied
admission and removed, unless such alien
shall establish that he was not required to
obtain such advance consent under this
chapter or any prior Act,
shall be fined under Title 18, imprisoned not more than
2 years, or both.
6 UNITED STATES V . VIDAL-MENDOZA
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 challenge to 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
UNITED STATES V . VIDAL-MENDOZA 7
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
4
Section 1240.11(a)(2) states:
In conjunction with any application for creation of
status of an alien lawfully admitted for permanent
residence made to an immigration judge, if the alien is
inadmissible under any provision of section 212(a) of
the Act, and believes that he or she meets the eligibility
requirements for a waiver of the ground of
inadmissibility, he or she may apply to the immigration
judge for such waiver. The immigration judge shall
inform the alien of his or her apparent eligibility to
apply for any of the benefits enumerated in this chapter
and shall afford the alien an opportunity to make
application during the hearing, in accordance with the
provisions of § 1240.8(d). In a relevant case, the
immigration judge may adjudicate the sufficiency of an
Affidavit of Support Under Section 213A (Form
8 UNITED STATES V . VIDAL-MENDOZA
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
I–864), executed on behalf of an applicant for
admission or for adjustment of status, in accordance
with the provisions of section 213A of the Act and 8
CFR part 213a.
UNITED STATES V . VIDAL-MENDOZA 9
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
10 UNITED STATES V . VIDAL-MENDOZA
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 § 212(c) relief at the time of the removal
hearing and, therefore, that removal could not be used to
support an indictment for illegal reentry. Id. at 898–99.
We rejected this argument, holding that “an IJ’s duty is
limited to informing an alien of a reasonable possibility that
the alien is eligible for relief at the time of the hearing.” Id.
at 895 (emphasis added). Because Lopez-Velasquez was not
eligible for relief “under the applicable law at the time of his
deportation hearing,” and “would become eligible only with
a change in law,” we determined that he was correctly
informed at his removal hearing. Id. at 897, 901.5
5
Lopez-Velasquez also rejected the alien’s collateral challenge to the
removal order on the ground that he would be ineligible for relief even if
the post-removal decision were considered. Lopez-Velasquez, 629 F.3d
at 899. Although Vidal-Mendoza argues that Lopez-Velasquez’s
clarification of the IJ’s duty to inform is therefore merely dicta, we
disagree. It is well-established that “where a decision rests on two or
more grounds, none can be relegated to the category of obiter dictum.”
UNITED STATES V . VIDAL-MENDOZA 11
Thus Lopez-Velasquez reiterates two correlative
principles regarding the IJ’s duty under § 1240.11(a)(2).
First, an IJ must provide accurate information regarding an
alien’s eligibility for relief “under the applicable law at the
time of his deportation hearing,” id. at 897. We have applied
this principle to uphold a defendant’s collateral challenge to
a prior removal order where the IJ erred in applying existing
law and the error was prejudicial. See, e.g., Pallares-Galan,
359 F.3d at 1091. In Pallares-Galan, the defendant
collaterally challenged a prior deportation order because the
IJ had informed him that his prior conviction under California
Penal Code section 647.6(a) constituted “sexual abuse of a
minor” and that, as a result, he was ineligible for relief. See
id. at 1092–93. Applying the categorical and modified
categorical approach set forth in Taylor v. United States,
495 U.S. 575 (1990), we held that “under the ordinary
meaning of its statutory terms, as well as under the California
Supreme Court’s understanding of its provisions, § 647.6(a)
is significantly broader than” the federal definition of “sexual
abuse of a minor,” Pallares-Galan, 359 F.3d at 1100–01, and
that the judicially cognizable documents in the record were
insufficient to establish, under the modified categorical
approach, that the defendant had committed such an offense,
id. at 1103. Accordingly, the defendant’s prior offense did
not constitute “sexual abuse of a minor” under either the
categorical or modified categorical approach. Id. Because
the IJ’s misapplication of existing precedent resulted in his
failure to inform the defendant of his “apparent eligibility”
Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949). Moreover,
Lopez-Velasquez’s articulation of the scope of an IJ’s duty to inform is
“the law of the circuit, regardless of whether it was in some technical
sense ‘necessary’ to our disposition of the case.” Barapind v. Enomoto,
400 F.3d 744, 751 (9th Cir. 2005) (en banc).
12 UNITED STATES V . VIDAL-MENDOZA
for relief, we held that the deportation proceeding “deprived
[the defendant] of a meaningful opportunity for judicial
review.” Id.
Second, by the same token, an IJ need not anticipate
future “change[s] in law” when determining an alien’s
“apparent eligibility” for relief from removal. Lopez-
Velasquez, 629 F.3d at 901. This rule likewise comports with
our long-stated principle that “IJs are not expected to be
clairvoyant” when discharging their duty to inform. Id. at
900 (quoting Moran-Enriquez v. INS, 884 F.2d 420, 422 (9th
Cir. 1989)); see also United States v. Moriel-Luna, 585 F.3d
1191, 1198 (9th Cir. 2009) (“[O]ur precedent does not require
that an IJ act creatively to advise an immigrant of ways in
which his legal prospects at forestalling deportation might
improve with fundamental changes in his status.”).
Finally, Lopez-Velasquez also indicated a “narrow
exception[]” to the general principle that the IJ need not
anticipate post-removal changes in the law. Lopez-Velasquez,
629 F.3d at 895. We provided only one example of such
“narrow circumstances” where we have “applied subsequent
precedent in reviewing a deportation order” under § 1326(d):
our decision in United States v. Leon-Paz, 340 F.3d 1003 (9th
Cir. 2003).
Leon-Paz also 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
§ 212(c). 340 F.3d at 1005. At the time of his removal
hearing, Congress had changed the law to limit the
availability of § 212(c) relief for aliens convicted of
aggravated felonies, but we had not yet weighed in on
whether these statutory changes were applicable retroactively
UNITED STATES V . VIDAL-MENDOZA 13
to aliens like Leon-Paz. See id. at 1006–07. Shortly after
Leon-Paz’s removal hearing, the Supreme Court held that
these changes applied prospectively only. INS v. St. Cyr,
533 U.S. 289, 326 (2001); see also Magana-Pizano v. INS,
200 F.3d 603, 611 (9th Cir. 1999). St. Cyr made clear that the
statutory changes regarding § 212(c) did not apply to Leon-
Paz, and that he had been apparently eligible for such relief
at the time of his removal hearing. See Leon-Paz, 340 F.3d
at 1006. Accordingly, we determined that in these “narrow
circumstances,” subsequent precedent required us to conclude
that the IJ committed an error of law by failing to inform
Leon-Paz of his apparent eligibility for relief.6 Lopez-
Velasquez, 629 F.3d at 899; see also Ubaldo-Figueroa,
364 F.3d at 1050–51 (applying St.Cyr to hold that an IJ failed
to inform an alien of his “apparent eligibility” for § 212(c)
relief).
This narrow exception “where subsequent precedent
renders a deportation order invalid” was not present in Lopez-
Velasquez. 629 F.3d at 895. As described earlier, the post-
removal precedent in Lopez-Velasquez did not make clear that
the alien was apparently eligible for relief at the time of his
removal proceeding; it was not analogous to the post-removal
precedent in Leon-Paz, for example, which held that a
statutory change applied prospectively only. Rather, the post-
removal precedent in Lopez-Velasquez created a new,
previously unavailable, possibility of relief by making a
6
Because only the federal courts, and not the BIA, have the authority to
determine a “question of statutory retroactivity,” Ledezma-Galicia v.
Holder, 636 F.3d 1059, 1067 (9th Cir. 2010), the IJ’s duty to inform an
alien of a “reasonable possibility” of the continued availability of § 212(c)
relief was not eliminated by the BIA’s conclusion on this issue, see In re
Soriano, 21 I. & N. Dec. 516, 519 (BIA 1996).
14 UNITED STATES V . VIDAL-MENDOZA
“deviation” from “longstanding Ninth Circuit and BIA
precedent.” See id. at 898. Because this post-removal
precedent created such a change in the law, we saw no basis
for Lopez-Velasquez’s claim that he had apparent eligibility
for relief at the time of the hearing and we denied his
collateral challenge to his removal order. See id. at 901.
C
Notwithstanding Lopez-Velasquez, Vidal-Mendoza argues
that, even if case law at the time of the removal hearing
foreclosed an alien’s eligibility for relief, judicial decisions
explain what the statute has always meant and, thus, the IJ
should be deemed to have violated the duty to inform at any
point the alien becomes eligible for relief under a post-
removal interpretation of the law. He supports this argument
with citations to cases involving direct review of removal
orders. See, e.g., Pelayo-Garcia v. Holder, 589 F.3d 1010(9th Cir. 2009).
We disagree. First, such an interpretation would require
the IJ to inform an alien about relief for which the alien is
apparently ineligible during the hearing. It would also require
an IJ to give an alien the “opportunity to make application”
for relief that was not available “during the hearing.” See
§ 1240.11(a)(2). This interpretation is plainly illogical and
inconsistent with the unambiguous language of
§ 1240.11(a)(2). See also United States v. Garza-Sanchez,
217 F.3d 806, 810 (9th Cir. 2000) (holding that a precursor of
§ 1240.11(a)(2) “did not require the IJ to inform [the alien]
. . . of potential constitutional challenges to the immigration
laws” because such challenges were not mentioned in the
regulatory text). Because the IJ does not violate
§ 1240.11(a)(2) by failing to inform the alien of a future
UNITED STATES V . VIDAL-MENDOZA 15
interpretation of the law, it is not relevant that such an
interpretation may be deemed to establish “what the meaning
of the law always was” in some theoretical way.
Moreover, Vidal-Mendoza’s interpretation would
effectively transform a § 1326(d) collateral challenge into a
direct appeal, because it would require courts to apply
intervening changes in the law to the IJ’s removal order in
every case. But we do not review a collateral challenge to a
removal order in the same manner as we review that order on
a petition for review. See Lopez-Velasquez, 629 F.3d at 899.
In Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169 (9th Cir.
2001), for example, we rejected an alien’s collateral challenge
to a removal order based on post-removal precedent because
the “order was perfectly lawful under the law at the time [the
alien] . . . was deported” and the alien had a right to challenge
the application of that law on a petition for review. Id. at
1172–73. Thus, “[i]n general, when intervening law renders
an alien eligible for discretionary relief for which he was
ineligible at the time of his deportation hearing, the proper
remedy is for the alien to file a motion to reopen.” Lopez-
Velasquez, 629 F.3d at 899–900 (internal quotation marks
and alterations omitted).
Because we cannot depart from the plain language of
§ 1240.11(a)(2), nor conduct direct review of an alien’s
removal hearing under § 1326(d), we reject Vidal-Mendoza’s
argument, as well as his reliance on cases involving direct
review of removal orders.
III
We now apply these principles to the facts of this case.
Vidal-Mendoza claims that the IJ had an obligation to inform
16 UNITED STATES V . VIDAL-MENDOZA
him of his apparent eligibility for voluntary departure because
under Estrada-Espinoza, decided over four years after his
removal hearing, his rape conviction did not constitute
“sexual abuse of a minor,” and, thus, was not an aggravated
felony. Estrada-Espinoza, 546 F.3d at 1160 (internal
quotation marks omitted).
Our analysis is largely controlled by Lopez-Velasquez.
We begin with the applicable law at the time of Vidal-
Mendoza’s 2004 removal hearing. The relevant statute
included the term “sexual abuse of a minor” in the definition
of “aggravated felony,” but provided no definition of the
term. 8 U.S.C. § 1101(a)(43)(A).7
We provided such a definition in a series of cases dating
back to 1999. We first defined the term “sexual abuse of a
minor” for purposes of § 1101(a)(43)(A) in United States v.
Baron-Medina, 187 F.3d 1144 (9th Cir. 1999), where we
applied the “ordinary, contemporary, and common meaning”
of “sexual abuse of a minor,” and concluded that any “use of
young children for the gratification of sexual desires
constitutes an abuse” because the “child [is] too young to
understand the nature of [defendant’s] . . . advances.” Id. at
1146–47 (internal quotation marks omitted); see also
Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1065 (9th Cir.
2003). We reiterated this holding four years later in United
States v. Pereira-Salmeron, 337 F.3d 1148 (9th Cir. 2003),
where we held that a conviction under a Virginia statute
criminalizing intercourse with “a child . . . under fifteen years
of age” constituted “sexual abuse of a minor.” Id. at 1155
(internal quotation marks omitted); cf. In re Rodriguez-
7
“The term ‘aggravated felony’ means,” among other things, “murder,
rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A).
UNITED STATES V . VIDAL-MENDOZA 17
Rodriguez, 22 I. & N. Dec. 991, 995 (BIA 1999) (defining
“sexual abuse of a minor” to include all offenses involving
“the employment, use, persuasion, inducement, enticement,
or coercion of a child to engage in . . . sexually explicit
conduct or the rape, molestation, prostitution, or other form
of sexual exploitation of children, or incest with children”).
This definition of “sexual abuse of a minor” was so well-
established in our case law that even two years after Vidal-
Mendoza’s removal proceedings, we stated that “[t]his circuit
consistently has held that statutory rape laws prohibiting
sexual contact with a minor under 16 proscribe conduct
constituting ‘sexual abuse of a minor.’” United States v.
Lopez-Solis, 447 F.3d 1201, 1205–06 (9th Cir. 2006) (citing
Pereira-Salmeron, 337 F.3d at 1155).
In conjunction with establishing this broad definition of
“sexual abuse of a minor,” we consistently “reject[ed] any
suggestion that the federal sexual abuse laws [18 U.S.C.
§§ 2241–2248] . . . limit the class of state laws reached by the
term” because the statute did not specifically cross-reference
those federal offenses. Baron-Medina, 187 F.3d at 1146; see
also Cedano-Viera, 324 F.3d at 1065 (specifically rejecting
that 18 U.S.C. § 2243 limited the term “sexual abuse of a
minor”).
Estrada-Espinoza sharply departed from this precedent by
holding that the federal sexual abuse laws, namely 18 U.S.C.
§ 2243, defined what it means for a crime to constitute
“sexual abuse of a minor” for purposes of § 1101(a)(43)(A).
Estrada-Espinoza, 546 F.3d at 1152. Relying on § 2243,
Estrada-Espinoza held that “the generic offense of ‘sexual
abuse of a minor’ requires four elements: (1) a mens rea level
of knowingly; (2) a sexual act; (3) with a minor between the
18 UNITED STATES V . VIDAL-MENDOZA
ages of 12 and 16; and (4) an age difference of at least four
years between the defendant and the minor.” Id.8
Accordingly, at the time of Vidal-Mendoza’s removal
hearing, he was ineligible for voluntary departure because his
Oregon rape offense constituted a conviction for “sexual
abuse of a minor” and an aggravated felony under
§ 1101(a)(43)(A). Vidal-Mendoza does not argue otherwise.
Similar to the alien in Lopez-Velasquez, his sole argument is
that the IJ had an obligation to inform him of his apparent
eligibility for voluntary departure under Estrada-Espinoza, a
case decided after his removal hearing. See Lopez-Velasquez,
629 F.3d at 897.
We reject his contention because this case does not
present the “narrow circumstances” where we may consider
post-removal precedent. Unlike St.Cyr, Estrada-Espinoza did
not make clear that Vidal-Mendoza was apparently eligible
for relief at the time of his removal hearing. Rather, Estrada-
Espinoza was a “deviation” from “longstanding Ninth Circuit
and BIA precedent.” Lopez-Velasquez, 629 F.3d at 898. As
described above, at the time of Vidal-Mendoza’s removal
hearing, “there was no suggestion from the BIA or this court
that the definition [of ‘sexual abuse of a minor’] could be
different” because both had rejected the very definition
eventually adopted in Estrada-Espinoza. Lopez-Velasquez,
629 F.3d at 900; see also Baron-Medina, 187 F.3d at 1146;
8
W e subsequently clarified that Estrada-Espinoza’s definition
“encompassed statutory rape crimes only” and, therefore, was not the sole
federal generic definition of “sexual abuse of a minor.” United States v.
Medina-Villa, 567 F.3d 507, 514 (9th Cir. 2009). In so limiting Estrada-
Espinoza, we revived in part the definition of “sexual abuse of a minor”
set forth in Baron-Medina. See Pelayo-Garcia, 589 F.3d at 1013–14.
UNITED STATES V . VIDAL-MENDOZA 19
Cedano-Viera, 324 F.3d at 1065; cf. Rodriguez-Rodriguez,
22 I. & N. Dec. at 994. Thus, because Estrada-Espinoza was
a clear “change in law,” it provides no basis for us to
conclude on collateral review that the IJ committed an “error
of law” at the time of Vidal-Mendoza’s removal hearing.
Lopez-Velasquez, 629 F.3d at 899, 901.
Because Vidal-Mendoza lacked “apparent eligibility” for
relief “under the applicable law at the time of his [removal]
. . . hearing” and potentially became eligible for such relief
only through Estrada-Espinoza’s post-removal “change in
law,” we hold that the IJ correctly informed Vidal-Mendoza
that he was not apparently eligible for voluntary departure at
the time of his 2004 removal hearing. See Lopez-Velasquez,
629 F.3d at 900–01; 8 C.F.R. § 1240.11(a)(2). In short, we
cannot conclude that the removal proceedings violated his
due process rights merely because the law at the time was
unfavorable to him.
IV
Vidal-Mendoza can invoke neither the “narrow
circumstances” set forth by Lopez-Velasquez nor the
principles applicable to direct review of deportation orders.
Accordingly, our collateral review of his removal proceedings
is limited to a single question: did the IJ inform Vidal-
Mendoza of all relief from removal for which he was
apparently eligible at the time of removal hearing? The
answer is “yes.” The law at the time of his deportation
clearly indicated that his previous rape conviction constituted
the aggravated felony of “sexual abuse of a minor” and
therefore Vidal-Mendoza was correctly informed that he was
20 UNITED STATES V . VIDAL-MENDOZA
ineligible for voluntary departure.9 As a result, he received
due process and his waiver of appeal rights was considered
and intelligent.
We, therefore, deny his collateral challenge to his prior
removal order because he has not satisfied any of § 1326(d)’s
requirements: he has not “exhausted any administrative
remedies that may have been available to seek relief against
the order,” he has not demonstrated that the prior removal
proceedings “improperly deprived [him] . . . of the
opportunity for judicial review,” and the entry of the removal
order was not “fundamentally unfair.” § 1326(d)(1)–(3).
REVERSED AND REMANDED.
9
Because we conclude that the IJ correctly informed Vidal-Mendoza
that his Oregon conviction constituted an aggravated felony under the law
at the time of Vidal-M endoza’s deportation, we need not reach the
government’s alternative argument that, even applying Estrada-Espinoza,
the IJ’s duty to inform was not triggered because Vidal-Mendoza’s
conviction meets Estrada-Espinoza’s generic definition for “sexual abuse
of a minor” under the modified categorical test.