USA v. Antonio Melendez-Castro

Filing

FILED PER CURIAM OPINION (DOROTHY W. NELSON, RONALD M. GOULD and SANDRA S. IKUTA) REMANDED. FILED AND ENTERED JUDGMENT. [8034580]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTONIO MELENDEZ-CASTRO, AKA
Antonio Melendres-Castro,
Defendant-Appellant.

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No. 10-50620
D.C. No.
3:10-CR-02444LAB-1
OPINION

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
December 7, 2011—Pasadena, California
Filed January 18, 2012
Before: Dorothy W. Nelson, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.
Per Curiam Opinion

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COUNSEL
Amy B. Kapoor, Federal Defenders of San Diego, Inc., for the
defendant-appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter,
Assistant U.S. Attorney Chief, Appellate Section Criminal
Division, Randy K. Jones, Assistant U.S. Attorney, for the
plaintiff-appellee.

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UNITED STATES v. MELENDEZ-CASTRO

OPINION
PER CURIAM:
Defendant Antonio Melendez-Castro appeals his conviction
under 8 U.S.C. § 1326(b) for illegal reentry into the United
States after being deported. Melendez-Castro challenges his
conviction based on a collateral attack of the underlying
removal order. We hold that a defect in Melendez-Castro’s
1997 immigration proceedings, that he was not meaningfully
informed of his eligibility for voluntary departure, violated his
due process rights. However, the district court did not consider fully whether Melendez-Castro suffered prejudice. We
therefore remand for the district court to address this issue in
the first instance.
I
Melendez-Castro is a native and citizen of Mexico who
became a legal permanent resident of the United States in
1988. For close to twenty years, Melendez-Castro lived in
Stockton, California, where he supported himself and his family by working as a plumber, electrician, mechanic, and assistant in his father’s tire shop. While his father is deceased, his
mother and sister reside legally in the Central Valley of California, and his U.S.-citizen daughter lives in Texas.
On November 5, 1997, the Immigration and Naturalization
Service (“INS”) served Melendez-Castro with a Notice to
Appear (“NTA”), alleging that he was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude, namely, petty
theft and petty theft with a prior.1
1

The first petty theft for which he was charged involved stealing three
pairs of boxer shorts valued at six dollars.

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On November 25, 1997, Melendez-Castro appeared pro se
for a group deportation hearing. The immigration judge (“IJ”)
determined that Melendez-Castro was deportable as charged.
The IJ then discussed whether Melendez-Castro was statutorily eligible to apply for cancellation of removal. The IJ
explained at length the legal requirements of cancellation of
removal, why Melendez-Castro likely qualified, the process
of applying for this relief, and the time it would take to do so.
Melendez-Castro decided not to apply.
Subsequently, the IJ summarily discussed voluntary departure:
The only other application you may be eligible for is
something called voluntary departure. Voluntary
departure is available to anyone who has not been
convicted of an aggravated felony. I can deny this in
my discretion and, and [sic] even if you were to
apply for voluntary departure I wouldn’t grant it to
you. I don’t grant voluntary departure to anyone convicted of a crime in the United States, so I will be
denying any other case of voluntary departure that
you may make, but I need to go through that in the
records, so that you understand.
Upon further questioning by the IJ, Melendez-Castro stated
that he understood the IJ’s decision. At the close of the immigration proceedings, the IJ signed an order removing
Melendez-Castro to Mexico. Melendez-Castro did not appeal
and was deported that day.
After this deportation, Melendez-Castro returned to the
United States. On June 23, 2010, he was indicted for one
count of illegal reentry after deportation, in violation of 8
U.S.C. § 1326. On August 25, 2010, he filed a motion to dismiss the indictment, arguing that the illegal reentry charge
was based on an invalid deportation. The district court denied
the motion, and a jury convicted him of illegal reentry after

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UNITED STATES v. MELENDEZ-CASTRO

deportation in violation of 8 U.S.C. § 1326(b). The district
court sentenced Melendez-Castro to 33 months in custody. He
filed a timely notice of appeal.
II
We have jurisdiction under 28 U.S.C. § 1291. We review
a collateral attack to a deportation order de novo. United
States v. Lopez-Velasquez, 629 F.3d 894, 896-97 (2010) (en
banc).
III
[1] A defendant charged with illegal reentry pursuant to 8
U.S.C. § 1326 has a due process right to bring a collateral
attack challenging the validity of his underlying deportation
order because it serves as a predicate element of his conviction. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047
(9th Cir. 2004). To succeed on a collateral attack under 8
U.S.C. § 1326(d), a defendant must demonstrate: “(1) that he
exhausted all administrative remedies available to him to
appeal his removal order, (2) that the underlying removal proceedings at which the order was issued ‘improperly deprived
[him] of the opportunity for judicial review’ and (3) that ‘the
entry of the order was fundamentally unfair.’ ” United States
v. Ortiz-Lopez, 385 F.3d 1202, 1203-04 (9th Cir. 2004) (per
curiam) (quoting 8 U.S.C. § 1326(d)). “An underlying
removal order is ‘fundamentally unfair’ if: (1) [a defendant’s]
due process rights were 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
(citation and quotations omitted).
[2] The Due Process Clause of the Fifth Amendment
requires that an alien in immigration proceedings be “made
aware that he has a right to seek relief” so that he has “a
meaningful opportunity to appeal the fact that he was not
advised of that right.” United States v. Arrieta, 224 F.3d 1076,

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1079 (9th Cir. 2000) (“[W]here the record contains an inference that the petitioner is eligible for relief from deportation,
the IJ must advise the alien of this possibility and give him the
opportunity to develop the issue.”) (internal quotations and
citation omitted). This includes providing an alien with the
opportunity to apply for relief. See id. An alien applying for
such relief has a right to present evidence in support of the
claim. See 8 U.S.C. § 1229a(b)(4)(B); 8 C.F.R. § 1240.1(c);
8 C.F.R. § 1240.11(a)(2).
[3] Upon review of the record, we conclude that
Melendez-Castro was not meaningfully advised of his right to
seek voluntary departure. Although the IJ at first told
Melendez-Castro that he was eligible for voluntary departure,
almost in the same breath the IJ told him that he would not
get the relief if he applied for it because he had a criminal
record. A reasonable person in Melendez-Castro’s position
would have been discouraged from applying for voluntary
departure to an extent that it is as if he was told that he did
not qualify for this relief. Melendez-Castro knew he had a
criminal record, and heard the IJ state without qualification
that he would not get this relief. It is no wonder that he did
not formally apply. The IJ never asked Melendez-Castro
whether he wanted to apply and, instead, said that any such
application would be futile. As a result, Melendez-Castro
never had a genuine opportunity to apply for voluntary departure or to present evidence of the factors favoring this relief.
See generally Campos-Granillo v. INS, 12 F.3d 849, 852 n.8
(9th Cir. 1993).
[4] An alien is “barred under 8 U.S.C. § 1326(d) from collaterally attacking his underlying removal order . . . ‘if he validly waived the right to appeal that order during the
deportation proceedings.’ ” Ubaldo-Figueroa, 364 F.3d at
1048 (citing United States v. Muro-Inclan, 249 F.3d 1180,
1182 (9th Cir. 2001), cert. denied, 534 U.S. 879 (2001)).
Melendez-Castro did not appeal the IJ’s decision, and that
presents a potential stumbling block to his collateral attack.

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But because of the underlying defect in Melendez-Castro’s
deportation hearing identified above, we hold that his waiver
of appeal was neither “considered” nor “intelligent,” and it is
therefore invalid. Ubaldo-Figueroa, 364 F.3d at 1049; Arrieta, 224 F.3d at 1079 (holding valid waiver must be “considered and intelligent”). As in Arrieta, “an alien who is not
made aware that he has a right to seek relief necessarily has
no meaningful opportunity to appeal the fact that he was not
advised of that right.” Arrieta, 224 F.3d at 1079. Consequently, Melendez-Castro is “exempted from the exhaustion
bar.” Ubaldo-Figueroa, 364 F.3d at 1049; Muro-Inclan, 249
F.3d at 1183 (“The exhaustion requirement of 8 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.”). Because MelendezCastro’s waiver was not valid, he was “deprived of his right
to that appeal and thus to a meaningful opportunity for judicial review.” United States v. Pallares-Galan, 359 F.3d 1088,
1096 (9th Cir. 2004) (citing United States v. Leon-Paz, 340
F.3d 1003, 1005 (9th Cir. 2003)).
[5] Nonetheless, to succeed on a collateral attack,
Melendez-Castro must also show prejudice. Melendez-Castro
“does not have to show that he actually would have been
granted relief,” Ubaldo-Figueroa, 364 F.3d at 1050, but “that
he had a ‘plausible’ ground for relief from deportation.” Id. at
1050 (citing Arrieta, 224 F.3d at 1079).
[6] Melendez-Castro met the statutory requirements for
pre-conclusion voluntary departure. 8 U.S.C. § 1229c(a); 8
C.F.R § 1240.26(b). Although he had a criminal record starting with his petty theft of boxer shorts, he also had positive
equities that could have been considered in deciding whether
to grant him this relief, including his family ties and history
of living and working in the United States. See CamposGranillo, 12 F.3d at 852 n.8. Because the district court erroneously found no due process violation, it did not fully analyze
the issue of prejudice, which must be shown for a successful

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collateral attack. We remand to the district court for consideration of prejudice in the first instance, and the district court
should set forth on the record the reasons for its ultimate decision.
REMANDED.