United States v. Juan Vidal-Mendoza
2013 U.S. App. LEXIS 948
| 9th Cir. | 2013Background
- Vidal-Mendoza, a Mexican citizen, committed third-degree rape of a minor in Oregon in 1999 and later failed to register as a sex offender in 2002.
- He was removed in absentia after being found in the United States without admission or parole in 2004, with the IJ informing him he was ineligible for relief due to an aggravated felony.
- He reentered the U.S. and was convicted again in 2009 for failing to register as a sex offender; the removal order was reinstated in May 2009.
- He returned again in 2010 and was indicted under 8 U.S.C. § 1326(a) for illegal reentry after removal; the government appealed a district court dismissal under § 1326(d).
- The court reverses the district court, holding the IJ’s advisement was correct under law at the time, and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the IJ’s duty to inform about apparent eligibility violated due process | Vidal-Mendoza argues the IJ should have informed him of apparent eligibility for voluntary departure under post-removal law | United States contends the IJ’s duty is limited to the law in effect at the time of removal | No § the IJ satisfied duty under law then; collateral challenge rejected |
| Whether Lopez-Velasquez governs the collateral challenge to require retroactive correction of law | Vidal-Mendoza relies on later precedent to show apparent eligibility | The court should apply the law as it existed at removal; Lopez-Velasquez sets limits | Lopez-Velasquez governs; no retroactive relief required |
| Whether Estrada-Espinoza’s post-removal definition creates apparent eligibility at time of hearing | Estrada-Espinoza post-dates removal; could render eligibility retroactive | Post-removal change in law cannot retroactively render eligibility at the time of hearing | Not applicable as narrow exception; no apparent eligibility at time of 2004 hearing |
| Whether Vidal-Mendoza may collaterally challenge the removal order under §1326(d) | Argues for invalid removal due to IJ error | Removal order valid under law at time; collateral challenge fails | Indictment dismissal affirmed only insofar as based on lack of exhaustion/judicial review; here IJ correctly informed |
| Outcome of the case overall regarding indictment | Indictment reversed and remanded; Vidal-Mendoza not entitled to collateral relief |
Key Cases Cited
- Lopez-Velasquez v. United States, 629 F.3d 894 (9th Cir. 2010) (IJ must inform of apparent eligibility for relief under applicable law at time of hearing; limited retroactivity)
- United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) (due process for failure to inform can excuse exhaustion and review)
- Pallares-Galan v. United States, 359 F.3d 1088 (9th Cir. 2004) (defect in informing about relief can be prejudicial)
- Lopez-Paz v. United States, 340 F.3d 1003 (9th Cir. 2003) (narrow retroactivity principles for relief eligibility)
- Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (post-removal change defining sexual abuse of a minor; not retroactive relief here)
- Baron-Medina v. United States, 187 F.3d 1144 (9th Cir. 1999) (broad definition of sexual abuse of a minor)
- Pereira-Salmeron v. United States, 337 F.3d 1148 (9th Cir. 2003) (expands definition of sexual abuse of a minor)
- Arrieta v. United States, 224 F.3d 1076 (9th Cir. 2000) (due process and review considerations for collateral challenges)
- St. Cyr v. INS, 533 U.S. 289 (2001) (prospective application of statutory changes)
- Leon-Paz v. United States, 340 F.3d 1003 (9th Cir. 2003) (narrow exception to inform on post-removal developments)
- Moriel-Luna v. United States, 585 F.3d 1191 (9th Cir. 2009) (IJ not expected to forecast future law changes)
- Pelayo-Garcia v. Holder, 589 F.3d 1010 (9th Cir. 2009) (post-removal precedent does not automatically render prior removal invalid)