DocketNumber: 09-50670
Citation Numbers: 406 F. App'x 177
Judges: Ikuta, Trott, Wardlaw
Filed Date: 12/16/2010
Status: Non-Precedential
Modified Date: 8/3/2023
FILED NOT FOR PUBLICATION DEC 16 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 09-50670 Plaintiff - Appellee, D.C. No. 3:08-cr-04494-JLS-1 v. MEMORANDUM * FERNANDO RAMOS-CRUZ, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding Argued and Submitted December 9, 2010 Pasadena, California Before: TROTT, WARDLAW, and IKUTA, Circuit Judges. The IJ’s classification of Ramos-Cruz’s felony DUI conviction under California Vehicle Code § 23152(b) as an aggravated felony was an error. See Leocal v. Ashcroft,543 U.S. 1
, 11 (2004); Montiel-Barraza v. INS,275 F.3d 1178
, 1180 (9th Cir. 2002). That this error became apparent only in light of later-decided * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. authority does not alter our analysis. Compare United States v. Pallares-Galan,359 F.3d 1088
, 1103–04 (9th Cir. 2004), with Avila-Sanchez v. Mukasey,509 F.3d 1037
, 1040–41 (9th Cir. 2007), and Alvarenga-Villalobos v. Ashcroft,271 F.3d 1169
, 1172–73 (9th Cir. 2001). Therefore, the IJ’s failure to inform Ramos-Cruz of his eligibility for relief from removal violated Ramos-Cruz’s due process rights, and his waiver of appeal from the removal order cannot bar him from collaterally attacking that order. See8 U.S.C. § 1326
(d)(1)–(2); United States v. Muro-Inclan,249 F.3d 1180
, 1183 (9th Cir. 2001) (“The exhaustion requirement of8 U.S.C. § 1326
(d) cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process.”). Ramos-Cruz has also demonstrated that he was prejudiced by the IJ’s error, see8 U.S.C. § 1326
(d)(3), because the sole basis for his removal was that he had committed an aggravated felony, namely, his felony DUI. See United States v. Camacho-Lopez,450 F.3d 928
, 930 (9th Cir. 2006). The 2004 and 2008 reinstatement orders are irrelevant to the question of prejudice, because a reinstatement of an invalid removal order is itself invalid. United States v. Arias-Ordonez,597 F.3d 972
, 978 (9th Cir. 2010). 2 Accordingly, we reverse Ramos-Cruz’s conviction and remand to the district court with instructions to vacate the underlying indictment. Because we reverse Ramos-Cruz’s conviction, we need not reach his arguments regarding his sentence. REVERSED AND REMANDED. 3
United States v. Arias-Ordonez , 597 F.3d 972 ( 2010 )
Avila-Sanchez v. Mukasey , 509 F.3d 1037 ( 2007 )
tito-imer-alvarenga-villalobos-v-john-ashcroft-attorney-general-of-the , 271 F.3d 1169 ( 2001 )
Ramon Montiel-Barraza v. Immigration and Naturalization ... , 275 F.3d 1178 ( 2002 )
United States v. Jose Jesus Camacho-Lopez , 450 F.3d 928 ( 2006 )
United States v. Juan Manuel Muro-Inclan , 249 F.3d 1180 ( 2001 )
United States v. Jose Alfredo Pallares-Galan , 359 F.3d 1088 ( 2004 )