- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Immigration
- Date Filed: 01-15-2013
- Case #: 11-30127
- Judge(s)/Court Below: Circuit Judge Ikuta for the Court; Circuit Judges Tashima and Tallman.
- Full Text Opinion
Vidal-Mendoza was charged with illegal reentry after removal under 8 U.S.C. § 1326(a). The district court dismissed the charge. The district court reasoned that, under a case decided four years after the removal hearing, the statutory rape conviction underlying Vidal-Mendoza’s original removal order was not an aggravated felony. Thus, the district court held the original removal order was invalid because the Immigration Judge (IJ) incorrectly informed Vidal-Mendoza that he was ineligible for voluntary departure. The Ninth Circuit noted, “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.” Thus, subsequent changes in the law do not provide a basis for challenging a removal order on the grounds that the IJ failed to inform the alien of eligibility for relief. The Court also noted a narrow exception to this rule exists where subsequent precedent makes clear that the defendant was “apparently eligible for [certain] relief at the time of his removal hearing.” The Ninth Circuit reasoned that Vidal- Mendoza lacked ‘‘apparent eligibility’ for relief ‘under the applicable law at the time of his removal hearing’” because (1) his underlying offense was clearly defined as an aggravated felony; and (2) the subsequent precedent, under which his underlying offense was redefined to not be an aggravated felony, “was a deviation from longstanding Ninth Circuit and BIA precedent.” The Ninth Circuit denied Vidal-Mendoza’s collateral challenge to his prior removal order, holding that where an alien lacks “apparent eligibility for relief  at the time of his removal hearing and potentially [becomes] eligible for such relief only through [a] post-removal change law,” the alien may not collaterally attack the removal order on the basis that the IJ failed to inform him of eligibility for such relief. REVERSED and REMANDED.