United States District Court, D. Arizona
Neil V. Wake United States District Judge
Before the Court is Defendant’s Motion to Dismiss Indictment (Doc. 21) and the parties’ accompanying briefs. Also before the Court is Defendant’s Motion for Revocation of the December 4, 2015 Order of Detention (Doc. 12) and Defendant’s Motion for Order Setting Conditions of Release (Doc. 30). For the reasons that follow, the Motion to Dismiss Indictment will be granted, rendering moot the Motion for Revocation of the Order of Detention and the Motion for Order Setting Conditions of Release.
Marco Antonio Felix-Coronado, a native of Mexico, entered the United States without inspection in or around 1988. In 1996 he was convicted of violating Arizona Revised Statute § 28-697(A)(1) (“Arizona’s Aggravated DUI statute”). In subsequent deportation proceedings he was found deportable, and he moved for relief in the form of suspension of deportation or voluntary departure.
On May 4, 2001, the presiding immigration judge (“IJ”) found Felix-Coronado ineligible for the requested relief after determining that his 1996 conviction under Arizona’s Aggravated DUI statute was for a crime involving moral turpitude. (Doc. 21-1 at 45.) In making this determination, the IJ expressly relied on a recent Board of Immigration Appeals (“BIA”) decision, In Re Lopez-Mesa. That decision, according to the IJ, “considered the Arizona statute and found it specifically to be a crime involving moral turpitude.” (Id. (citing In Re Lopez-Mesa, Int. Dec. 3423 (BIA 1999)).) Accordingly, the IJ concluded: “I have no alternative but to find that [Felix-Coronado] is deportable as charged and has no relief from deportation at this time.” (Id. at 46.) The BIA summarily affirmed, and Felix-Coronado was removed from the country.
In 2003, the Ninth Circuit rejected the BIA’s interpretation of Arizona’s Aggravated DUI statute set forth in In Re Lopez-Mesa. Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003). The court explained that Arizona’s Aggravated DUI statute is divisible: It prohibits not only “driving” under the influence without a license, but also having “actual physical control” of a vehicle under the influence without a license. Id. at 1118. Although the court did not opine as to whether a violation of the “driving” prong involves moral turpitude, it indicated that a violation of the “actual physical control” prong does not involve moral turpitude. Id. at 1118-19. The court concluded that the BIA’s “error of law” in In Re Lopez-Mesa “was not to treat the statute as divisible.” Id. at 1119.
In 2014, Felix-Coronado was found in the United States again. On December 22, 2015, he was indicted for illegal reentry in violation of 8 U.S.C. § 1326(a). He now moves to dismiss the indictment, claiming the underlying 2001 removal order violated his due process rights because the IJ erroneously told him he was ineligible for relief from removal.
Because the underlying removal order is a predicate element of an illegal reentry offense under 8 U.S.C. § 1326(a), Felix-Coronado may collaterally attack the removal order under the due process clause. United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). To sustain a collateral attack, Felix-Coronado must show that (1) he “exhausted any administrative remedies” against the order, (2) the deportation proceedings at which the order was issued “deprived him of the opportunity for judicial review, ” and (3) the order was “fundamentally unfair.” 8 U.S.C. § 1326(d).
Here, the government contends only that Felix-Coronado has not shown fundamental unfairness. To show fundamental unfairness, Felix-Coronado must demonstrate that (1) his due process rights were violated by defects in the underlying deportation proceeding and (2) he suffered prejudice as a result. Pallares-Galan, 359 F.3d at 1095.
A. Due Process Violation
An alien in removal proceedings has a due process right to be informed of his or her ability to apply for relief from removal. United States v. Vidal-Mendoza, 705 F.3d 1012, 1015 (9th Cir. 2013). The Ninth Circuit has derived this right from an immigration regulation that requires IJs to inform aliens of their “apparent eligibility” to apply for certain relief Id. (quoting 8 C.F.R. § 1240.11(a)(2)). This right is violated when the IJ either fails to give the alien any information about the relief for which the alien is “apparently eligible” or when the IJ erroneously tells the alien that no relief is possible. United States v. Gonzales-Flores, 804 F.3d 920, 926-97 (9th Cir. 2015).
Felix-Coronado alleges a violation of the latter sort, claiming the IJ erroneously told him he was ineligible for relief from removal. This kind of error can serve as a basis for challenging a removal order if the error resulted from the IJ’s misapplication of existing precedent. Vidal-Mendoza, 705 F.3d at 1017. Misapplication of existing precedent is actionable because IJs have a duty to inform aliens about their apparent eligibility for relief under the applicable law at the time. Id. By contrast, an IJ’s failure to anticipate future changes in law when determining eligibility for relief is not actionable. Id. After all, IJs are not expected to be clairvoyant when discharging their duty to inform. Id.
Felix-Coronado contends the IJ’s conclusion-that he was ineligible for relief because he had been convicted of a crime involving moral turpitude-was false in light of then-existing precedent. Specifically, he claims the IJ failed to treat Arizona’s Aggravated DUI statute as divisible, ...