United States v. Vidal-Mendoza, No. 11-30127 (9th Cir. 2013)
Annotate this CaseDefendant, a citizen of Mexico, pleaded guilty to third degree rape under Oregon law in December 1999. In 2002, he pleaded guilty for failing to register as a sex offender and voluntarily left the country some time later. After being indicted in 2010 for illegally reentering the country after having been previously removed, defendant 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. The court concluded that defendant'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. Accordingly, the court reversed the dismissal of the indictment against defendant and remanded for further proceedings.
Court Description: 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.
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