USA v. Fernando Ramos-Cruz, No. 09-50670 (9th Cir. 2010)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 16 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-50670 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. See 8 U.S.C. § 1326(d)(1) (2); United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001) ( 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. ). Ramos-Cruz has also demonstrated that he was prejudiced by the IJ s error, see 8 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
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