United States v. Aguirre-Velasquez, 3:14-cr-00400

Juan Francisco Aguirre-Velasquez, a Salvadoran national, entered the U.S. in 1997 and was convicted in 1999 of two counts of delivery of a controlled substance (sentenced to 36 months probation). Deportation proceedings followed.
At a 1999 removal hearing IJ Michael Bennett advised Aguirre-Velasquez he was ineligible for asylum (aggravated felony) and found his drug convictions were "particularly serious," denying withholding of removal.
IJ Bennett explained that the only remaining relief would be deferral of removal under the CAT, which could result in indefinite detention (i.e., "staying locked up in the United States"), and asked whether he wished to pursue withholding; Aguirre-Velasquez withdrew his application and acquiesced to removal.
Aguirre-Velasquez was removed to El Salvador on January 14, 2000 and reentered the U.S. without permission; ICE discovered him in 2014 and he was indicted under 8 U.S.C. § 1326 for illegal reentry.
He moved to dismiss the § 1326 indictment, arguing his 1999 removal was void because the IJ incorrectly advised him that prevailing on deferral of removal would mean indefinite detention — a legal error later recognized in Ma and Zadvydas — depriving him of due process.
The court denied the motion, holding the IJ accurately explained eligibility and detention under the law as it stood in 1999, and the later cases narrowing detention are not retroactively applicable to invalidate the removal order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant may collaterally attack prior removal under 8 U.S.C. § 1326(d)	Government: removal valid; defendant cannot meet § 1326(d) requirements	Aguirre-Velasquez: IJ misinformed him about indefinite detention, violating due process and rendering removal order invalid	Denied — §1326(d) not satisfied; prior removal valid
Whether IJ’s advice about possible indefinite detention violated due process	Government: IJ accurately informed defendant under controlling 1999 law	Defendant: Ma and Zadvydas show indefinite detention is impermissible, so IJ’s advice was incorrect	Denied — IJ’s advice matched the law and regulations in 1999
Whether post-1999 legal developments (Ma, Zadvydas) apply retroactively to invalidate the removal order	Government: later decisions do not retroactively undo removals unless they eliminate the statutory basis for removability	Defendant: Aguilera-Rios supports retroactive relief in some contexts; here Ma/Zadvydas should apply	Denied — Aguilera-Rios exception not met; later rulings did not negate removability based on drug convictions
Whether IJ must anticipate future changes in law when advising aliens of relief options	Government: IJ need only apply controlling law at hearing; not clairvoyant	Defendant: IJ should have foreseen that indefinite detention was legally infirm	Denied — IJs need not anticipate future legal changes; duty is to inform under existing law

United States v. Gomez, 757 F.3d 885 (9th Cir.) (procedural requirements for collateral attacks on removal orders under § 1326)
United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) (due process requires informing alien of ability to apply for relief)
Muro-Inclan v. INS, 249 F.3d 1180 (9th Cir. 2001) (failure to inform of apparent eligibility for relief denies due process)
Lopez-Velasquez v. Holder, 629 F.3d 894 (9th Cir. 2010) (IJ’s duty measured by controlling law at time of hearing; no obligation to anticipate future law)
Ma v. Reno, 208 F.3d 815 (9th Cir. 2000) (limits on mandatory indefinite detention in immigration context)
Zadvydas v. Davis, 533 U.S. 678 (2001) (statutory interpretation restricting indefinite post-removal-period detention)
United States v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014) (narrow circumstance allowing post hoc statutory interpretation to invalidate prior removal when it negates removability)
Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (categorical approach can eliminate a prior conviction as a predicate for removal)