United States v. Lopez-Velasquez
2010 U.S. App. LEXIS 24889
| 9th Cir. | 2010Background
- Lopez-Velasquez, a Mexico native, entered illegally in the 1980s and obtained SAW-based LPR status in December 1990;
- He was convicted of drug offenses and deported in 1994 after an IJ failed to inform him of § 212(c) relief;
- The government later reindicted him for illegal reentry under § 1326;
- The district court dismissed the indictment, ruling the IJ’s failure to inform about § 212(c) relief invalidated the deportation order;
- On rehearing en banc, the Ninth Circuit reversed and remanded for further proceedings;
- The court held the IJ’s duty is limited to informing about a reasonable possibility of relief at the time of the hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| IJ duty to inform about relief at hearing | Lopez-Velasquez argues the IJ should have informed of relief he could become eligible for. | United States contends no duty to inform of relief unless a plausible basis exists. | Duty limited to a reasonable possibility of relief at the hearing. |
| Impact of domicile timing on eligibility | Colorable claim that domicile began earlier (SAW start date) could make relief imminent. | Under Castillo-Felix, domicile begins at LPR status; no earlier start. | Even under Ortega de Robles, still ineligible; no imminent eligibility triggering duty. |
| Effect of subsequent precedent on deportation validity | Intervening law could render deportation invalid or require reopening. | Remedy is to reopen under law in effect at time of hearing, not retroactive relief. | No grounds to invalidate deportation order; no duty to inform based on subsequent precedent. |
Key Cases Cited
- Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979) (domicile begins at LPR status; seven years required for § 212(c) relief)
- Ortega de Robles v. INS, 58 F.3d 1355 (9th Cir. 1995) (considered domicile start for amnesty; implications for SAW not decided here)
- Moran-Enriquez v. INS, 884 F.2d 420 (9th Cir. 1989) (IJ must fairly raise eligibility; not clairvoyant in records)
- In re Cazares-Alvarez, 21 I. & N. Dec. 188 (BIA 1996) (BIA adopts Ortega de Robles approach for § 245A applicants)
- Ubaldo-Figueroa v. United States, 364 F.3d 1042 (9th Cir. 2004) (IJ failure to inform can support collateral attack when deportation used for §1326)
- Valencia v. Mukasey, 548 F.3d 1261 (9th Cir. 2008) (IJ not required to inform of all possible relief; prevents frivolous filings)
- Foroughi v. INS, 60 F.3d 570 (9th Cir. 1995) (time toward domicile may accrue during appeal in some contexts)