FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-30241
Plaintiff-Appellant,
v. D.C. No.
06-cr-00434-KI-1
EDMUNDO LOPEZ-VELASQUEZ,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Argued and Submitted
June 23, 2010—Pasadena, California
Filed December 7, 2010
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Diarmuid F. O’Scannlain, Sidney R. Thomas,
Susan P. Graber, M. Margaret McKeown,
Kim McLane Wardlaw, Raymond C. Fisher,
Ronald M. Gould, Richard A. Paez, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
19569
19572 UNITED STATES v. LOPEZ-VELASQUEZ
COUNSEL
Karin J. Immergut, United States Attorney, Jonathan S. Haub
and Kelly A. Zusman, Assistant United States Attorneys,
Portland, Oregon, for the plaintiff-appellant.
Terry Kolkey, Ashland, Oregon, for the defendant-appellee.
OPINION
CALLAHAN, Circuit Judge:
The district court dismissed the indictment against
Edmundo Lopez-Velasquez for illegal reentry on the ground
that the immigration judge (“IJ”) presiding over his deporta-
tion hearing had a duty to inform him of discretionary relief
under § 212(c) of the Immigration and Nationality Act. See 8
U.S.C. § 1182(c) (1994) (repealed 1996). Under the law as
understood at the time of the hearing, Lopez-Velasquez was
four years short of the mandatory seven-year domicile
UNITED STATES v. LOPEZ-VELASQUEZ 19573
requirement for § 212(c) relief. Lopez-Velasquez contends
that his domicile should have been calculated differently, in
light of a case we decided a year after his hearing. But, even
if we were to accept the calculation suggested by Lopez-
Velasquez, he was still eight months short of eligibility.
We hold that an IJ’s duty is limited to informing an alien
of a reasonable possibility that the alien is eligible for relief
at the time of the hearing. While there may be narrow excep-
tions where an IJ has a duty to inform an alien of relief for
which the alien will become eligible imminently, or where
subsequent precedent renders a deportation order invalid,
those circumstances are not presented here. Accordingly, we
reverse and remand.
I. Background
The facts are not in dispute. Lopez-Velasquez, a native and
citizen of Mexico, illegally entered the United States during
the early 1980s and held a number of seasonal agricultural
jobs in Oregon. In November 1986, Congress passed the
Immigration Reform and Control Act of 1986 (“IRCA”),
which, among other things, created a path to lawful perma-
nent residency for two categories of aliens. See Pub. L. No.
99-603, 100 Stat. 3359. One category, which applied to
Lopez-Velasquez, was called the Special Agricultural Worker
(“SAW”) program and was available to aliens who were
already working in the United States and had performed at
least 90 man-days of agricultural labor during the year ending
May 1, 1986. 8 U.S.C. § 1160.1 Lopez-Velasquez applied for
the SAW program in October 1987, was accepted, and was
granted temporary resident status. His status was adjusted to
lawful permanent resident (“LPR”) in December 1990.
1
The other category was a general amnesty program for aliens who had
resided continuously in the United States since 1982. 8 U.S.C. § 1255a.
19574 UNITED STATES v. LOPEZ-VELASQUEZ
Lopez-Velasquez was convicted three years later in state
court for delivery of a controlled substance and served eight
months in prison. The INS initiated deportation proceedings
based on the conviction. On February 10, 1994, Lopez-
Velasquez appeared without counsel before an IJ in a group
deportation proceeding and conceded removability. The IJ
was informed of the dates on which Lopez-Velasquez
received temporary and permanent resident status under
SAW. The IJ asked the INS attorney whether he was aware
of any relief available to Lopez-Velasquez and the others, and
the attorney responded that there did not appear to be any.
Lopez-Velasquez was ordered deported to Mexico. The IJ
informed Lopez-Velasquez and the others of their right to
appeal the decision by filing written notice. Lopez-Velasquez
waived his right to appeal and was deported.
Lopez-Velasquez reentered the country at some point and,
in 2003, was again deported after pleading guilty to two
counts of illegal reentry. Lopez-Velasquez again reentered,
and immigration proceedings and the instant criminal case
ensued.
In the immigration proceedings, the government charged
Lopez-Velasquez with removability. In response, Lopez-
Velasquez filed a motion to reopen his 1994 deportation pro-
ceedings, arguing that he was denied due process because the
IJ did not inform him about the possibility for relief under
§ 212(c). At the time, § 212(c) provided discretionary relief
from deportation for LPRs who had seven consecutive years
of “lawful unrelinquished domicile” in the United States and
had not served more than five years’ imprisonment for one or
more aggravated felonies. 8 U.S.C. § 1182(c) (1994). The
government moved to reinstate the 1994 deportation order,
and the IJ granted the motion. The BIA affirmed, and Lopez-
Velasquez appealed. In an unpublished decision, we denied
his petition for review. Lopez-Velasquez v. Mukasey, 308 F.
App’x 236, 237 (9th Cir. 2009) (unpublished).
UNITED STATES v. LOPEZ-VELASQUEZ 19575
Meanwhile, Lopez-Velasquez was indicted on one count of
illegal reentry under 8 U.S.C. § 1326. He moved to dismiss
the indictment on the same basis he argued in his immigration
proceedings, i.e., that he was denied due process because the
IJ presiding over his 1994 deportation hearing did not inform
him about the possibility of § 212(c) relief. The district court
agreed, holding that there was a reasonable possibility Lopez-
Velasquez was entitled to such relief. Under the law at the
time of the deportation hearing, the seven-year domicile
requirement for § 212(c) relief was defined as beginning
when an alien was granted LPR status, and Lopez-Velasquez
had been an LPR for just over three years. But the district
court determined that Lopez-Velasquez had a colorable argu-
ment that, instead, he began to accrue time when he applied
for the SAW program or when SAW was enacted. Lopez-
Velasquez would have been eight months short of eligibility
even if domicile had begun when he applied for the SAW pro-
gram; however, the district court concluded that Lopez-
Velasquez could have accrued the remaining time during an
appeal of the IJ’s decision to the BIA.
The district court dismissed the indictment on the basis that
the IJ’s failure to inform Lopez-Velasquez of the possibility
of § 212(c) relief invalidated the deportation order underlying
the indictment. On the government’s appeal, a three-judge
panel of our court affirmed. United States v. Lopez-Velasquez,
568 F.3d 1139, 1146 (9th Cir. 2009). We subsequently
granted rehearing en banc. United States v. Lopez-Velasquez,
599 F.3d 925 (9th Cir. 2010).
II. Jurisdiction and Standard of Review
We have jurisdiction under 28 U.S.C. § 1291. We review
a collateral attack to a deportation order de novo. United
States v. Ahumada-Aguilar, 295 F.3d 943, 947 (9th Cir.
2002).
19576 UNITED STATES v. LOPEZ-VELASQUEZ
III. Analysis
[1] This case concerns the extent of an IJ’s duty to inform
aliens of their eligibility for relief from removal. Immigration
regulations require an IJ to inform an alien of “apparent eligi-
bility” for relief. 8 C.F.R. § 1240.11(a)(2). We have inter-
preted “apparent eligibility” to mean “where the record, fairly
reviewed by an individual who is intimately familiar with the
immigration laws—as IJs no doubt are—raises a reasonable
possibility that the petitioner may be eligible for relief.”
Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir. 1989).
We have repeatedly held that an IJ’s failure to so advise an
alien violates due process and can serve as the basis for a col-
lateral attack to a deportation order where, as here, the order
is used as the predicate for an illegal reentry charge under
§ 1326. United States v. Ubaldo-Figueroa, 364 F.3d 1042,
1050 (9th Cir. 2004).2
[2] Lopez-Velasquez does not actually claim that he was
eligible for § 212(c) relief under the applicable law at the time
of his deportation hearing; he unquestionably was not.
Instead, he argues that he could have made a colorable argu-
ment for interpreting the seven-year domicile requirement as
2
Although we and the Second Circuit have held that an IJ’s failure to
inform an alien of possible eligibility for discretionary relief constitutes a
due process violation, most other circuits have adopted a more limited
interpretation of the IJ’s duty to inform. See United States v. Copeland,
376 F.3d 61, 70-73 (2d Cir. 2004) (holding that failure to advise an alien
of possible forms of relief may violate due process). But see United States
v. Santiago-Ochoa, 447 F.3d 1015, 1020 (7th Cir. 2006) (stating that an
alien does not have a constitutional right to be informed of eligibility for
discretionary relief); Bonhometre v. Gonzales, 414 F.3d 442, 448 n.9 (3d
Cir. 2005) (same); United States v. Aguirre-Tello, 353 F.3d 1199, 1205
(10th Cir. 2004) (en banc) (same); United States v. Lopez-Ortiz, 313 F.3d
225, 231 (5th Cir. 2002) (same); see also Smith v. Ashcroft, 295 F.3d 425,
430 (4th Cir. 2002) (stating that an alien’s eligibility for discretionary
relief is not a constitutionally protected interest); Escudero-Corona v. INS,
244 F.3d 608, 615 (8th Cir. 2001) (same); Ashki v. INS, 233 F.3d 913, 921
(6th Cir. 2000) (same).
UNITED STATES v. LOPEZ-VELASQUEZ 19577
starting when he applied for SAW, which would give him six
years and four months of domicile at the time of the hearing.
Lopez-Velasquez argues he was close enough to eligibility
that the IJ should have considered that he could become eligi-
ble by accruing the additional time during an appeal to the BIA.3
Our evaluation of Lopez-Velasquez’s claim that the IJ had
a duty to advise him of the possibility of relief under § 212(c)
is informed by the history of the law governing eligibility for
such relief. Prior to its repeal in 1996, § 212(c) granted the
Attorney General discretion to waive the exclusion of LPRs
“who temporarily proceeded abroad voluntarily and not under
an order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years,” as long
as the LPRs had not served an imprisonment term of five
years or more for one or more aggravated felonies. 66 Stat.
187 (1952 INA) (later codified as 8 U.S.C. § 1182(c)
(repealed 1996)). Although the statute on its face applied only
to aliens in exclusion proceedings, the INS extended relief
under § 212(c) to aliens in deportation proceedings. Castillo-
Felix v. INS, 601 F.2d 459, 462 (9th Cir. 1979).4
In our 1979 opinion in Castillo-Felix, we determined what
it means to have “lawful unrelinquished domicile” for pur-
3
At the time of Lopez-Velasquez’s hearing, an alien could continue to
accrue time toward domicile for purposes of § 212(c) relief while appeal-
ing the IJ’s decision to the BIA. See Foroughi v. INS, 60 F.3d 570, 575
(9th Cir. 1995). However, when Congress repealed § 212(c) in 1996, it
specified that an alien’s accrual of time for any residency requirements
ends when the alien is served a notice to appear for removal proceedings
or commits an offense that renders him inadmissible or removable. 8
U.S.C. § 1229b(d)(1).
4
Prior to the enactment of the Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 (“IIRIRA”), immigration law distin-
guished between “exclusion” and “deportation” proceedings. See Landin-
Zavala v. Gonzales, 488 F.3d 1150, 1153 n.3 (9th Cir. 2007). IIRIRA
encompasses both under a broader category of “removal” proceedings. See
id.
19578 UNITED STATES v. LOPEZ-VELASQUEZ
poses of § 212(c) relief. There, the petitioner argued that an
alien could accrue lawful domicile prior to becoming an LPR.
Id. at 463. We disagreed, reasoning that the INS had always
interpreted domicile as beginning with LPR status, its inter-
pretation was entitled to great deference, and its position was
not inconsistent with the statutory mandate or congressional
policy. Id. at 464-67. We held that “to be eligible for
[§ 212(c)] relief, aliens must accumulate seven years of lawful
unrelinquished domicile after their admission for permanent
residence.” Id. at 467.
The 1986 SAW provisions provided a path to LPR status
and made special exceptions to other immigration provisions.
8 U.S.C. § 1160. For example, the SAW provisions created a
temporary stay of deportation for aliens who were appre-
hended by immigration authorities before the SAW applica-
tion period began, but who were eligible for SAW. Id.
§ 1160(d)(1). SAW did not, however, address relief from
deportation under § 212(c) or the definition of domicile. See
id. § 1160. Further, between SAW’s enactment and Lopez-
Velasquez’s deportation hearing in February 1994, we pub-
lished no cases that discussed Castillo-Felix or domicile.
[3] Our 1995 opinion in Ortega de Robles v. INS, 58 F.3d
1355 (9th Cir. 1995), was our first deviation from the
Castillo-Felix definition of domicile. There we considered
whether beneficiaries of general amnesty under § 245A,
another amnesty program under IRCA, could begin accruing
domicile time when they applied for the program. Ortega de
Robles, 58 F.3d at 1358. We noted that IRCA was enacted
after Castillo-Felix and, thus, the holding in Castillo-Felix did
not necessarily apply to aliens obtaining legal status under
IRCA. Id. We observed that § 245A amnesty applicants
intended to remain permanently in the United States while in
temporary resident status, because it was only a stepping
stone to gaining LPR status. Id. at 1360-61. We concluded
that, for § 245A applicants, domicile began with the date of
their application for amnesty. Id. Although we acknowledged
UNITED STATES v. LOPEZ-VELASQUEZ 19579
that the SAW provisions were also enacted under IRCA, we
did not consider whether our reasoning would apply to SAW
applicants. See id. at 1359 n.5.
The BIA subsequently issued a decision stating that it
would follow Ortega de Robles for § 245A applicants within
our circuit. In re Cazares-Alvarez, 21 I. & N. Dec. 188, 192
(B.I.A. 1996). Shortly thereafter, relief under § 212(c) was
repealed by IIRIRA. See Ubaldo-Figueroa, 364 F.3d at 1044.
[4] With this history in mind, we turn to whether there was
a reasonable possibility that Lopez-Velasquez was eligible for
relief under § 212(c) when he appeared before the IJ in 1994.
At that time, longstanding Ninth Circuit and BIA precedent
provided that domicile was measured from the date an alien
received LPR status, and could not be considered to start
before then. Castillo-Felix, 601 F.2d at 463-67; In re S, 5 I.
& N. Dec. 116, 118 (B.I.A. 1953). That precedent rendered
Lopez-Velasquez almost four years short of the seven-year
eligibility requirement. Lopez-Velasquez was ineligible for
relief, as a matter of law, at the time of the hearing.5
[5] Yet Lopez-Velasquez relies on Ortega de Robles,
which was decided a year after his hearing, to show that there
was a colorable argument that the IJ should have calculated
his domicile from the date he applied for SAW. His reliance
is misplaced for two reasons. First, even under the measure of
domicile in Ortega de Robles, Lopez-Velasquez was eight
months short of the seven-year requirement and, thus still
ineligible as a matter of law. While there may be exceptional
circumstances under which we would conclude that an alien’s
5
Prior to Lopez-Velasquez’s hearing, the Third, Fourth, and Tenth Cir-
cuits had also followed the BIA’s interpretation, while only the Second
Circuit had held that domicile could begin at some point prior to LPR sta-
tus. Michelson v. INS, 897 F.2d 465, 469 (10th Cir. 1990); Reid v. INS,
756 F.2d 7, 10 (3d Cir. 1985); Chiravacharadhikul v. INS, 645 F.2d 248,
250-51 (4th Cir. 1981); Lok v. INS, 548 F.2d 37, 39-41 (2d Cir. 1977).
19580 UNITED STATES v. LOPEZ-VELASQUEZ
imminent eligibility triggered the IJ’s duty to inform the alien
of the possibility for relief, the eight-month gap here does not
present such circumstances.
[6] Nonetheless, Lopez-Velasquez argues that the IJ had a
duty to inform him of relief because he could have accrued
the remaining eight months by appealing to the BIA. The IJ
had no duty to inform him of that possible avenue for relief
because there was no indication that he had a substantive
basis for pursuing an appeal. See, e.g., INS v. Rios-Pineda,
471 U.S. 444, 450 (1985) (“The purpose of an appeal is to
correct legal errors which occurred at the initial determination
of deportability; it is not to permit an indefinite stalling of
physical departure in the hope of eventually satisfying legal
prerequisites.”); 8 C.F.R. § 1003.1(d)(2)(i)(D) (authorizing
BIA to summarily dismiss an appeal filed for an improper
purpose, such as delay); cf. Valencia v. Mukasey, 548 F.3d
1261, 1263-64 (9th Cir. 2008) (explaining that IJs have no
duty to inform aliens of all possible ways of obtaining relief;
otherwise, aliens would be encouraged to file frivolous appli-
cations, burdening the immigration system and possibly
resulting in frivolousness determinations).6
In a different context, we have recognized that an alien or
an attorney might make a strategic decision to use a plausible
appeal to accrue time toward eligibility. We did so in the con-
text of deciding whether an alien was prejudiced by a due pro-
cess violation in the deportation proceedings, such as an
invalid waiver of appeal or waiver of counsel. See, e.g.,
Ahumada-Aguilar, 295 F.3d at 950-51 (concluding that alien
was prejudiced by his invalid waiver of counsel because
counsel would have urged him to bring an appeal to accrue
time toward eligibility); United States v. Jimenez-Marmolejo,
104 F.3d 1083, 1085-86 (9th Cir. 1996) (concluding that alien
was prejudiced by invalid waiver of appeal at deportation
6
As noted, aliens may no longer accrue time toward eligibility for relief
on appeal in most cases. 8 U.S.C. § 1229b(d)(1) (effective 1997).
UNITED STATES v. LOPEZ-VELASQUEZ 19581
hearing because, if he had appealed, he could have accrued
eligibility); see also United States v. Arrieta, 224 F.3d 1076,
1079 (9th Cir. 2000) (to attack a deportation order collater-
ally, an alien must demonstrate a due process violation and
resulting prejudice). Here, Lopez-Velasquez has failed in the
first instance to establish a due process violation, because the
IJ had no duty to inform him of relief for which he was not
eligible and there were no other circumstances triggering such
a duty.
[7] Second, only under narrow circumstances have we
applied subsequent precedent in reviewing a deportation
order. See, e.g., United States v. Leon-Paz, 340 F.3d 1003,
1005-07 (9th Cir. 2003) (determining that the alien’s due pro-
cess rights were violated because the IJ informed him he was
ineligible for relief, which was an error of law in light of the
Supreme Court’s subsequent decision in INS v. St. Cyr, 533
U.S. 289 (2001)). But see Avila-Sanchez v. Mukasey, 509 F.3d
1037, 1040 (9th Cir. 2007) (rejecting argument that subse-
quent precedent invalidated a deportation order that was cor-
rectly decided under existing BIA precedent). In general,
“[w]hen intervening law renders an alien eligible for discre-
tionary relief for which he was ineligible at the time of his
deportation hearing, the proper remedy is for the [alien] . . .
to file a motion to reopen.” Valderrama-Fonseca v. INS, 116
F.3d 853, 857 (9th Cir. 1997) (stating that the IJ did not err
in failing to advise the alien of relief because the law making
the alien eligible had not yet been enacted at the time of the
deportation hearing). Lopez-Velasquez’s prior motion to
reopen was unsuccessful. There are no grounds to invalidate
Lopez-Velasquez’s deportation order based on Ortega de
Robles because it does not necessarily apply to SAW appli-
cants and would not have made it reasonably possible that he
was eligible for relief at the time of the hearing.
In defining the IJ’s duty to inform, we have focused on
whether the factual circumstances in the record before the IJ
suggest that an alien could be eligible for relief. In Moran-
19582 UNITED STATES v. LOPEZ-VELASQUEZ
Enriquez, we explained that “IJs are not expected to be clair-
voyant; the record before them must fairly raise the issue:
Until the alien himself or some other person puts information
before the judge that makes such eligibility apparent, this duty
does not come into play.” 884 F.2d at 422 (internal quotation
and alteration marks omitted). On this basis, we have con-
cluded that where the record demonstrates, or at least implies,
a factual basis for relief, the IJ’s duty is triggered. Id. at 422-
23. For example, where the record before the IJ reveals that
the alien is an immediate relative of a United States citizen or
LPR, the IJ has a duty to inform the alien of possible relief
based on that relationship. Id.; Arrieta, 224 F.3d at 1079.
[8] On the other hand, the IJ is not required to advise an
alien of possible relief when there is no factual basis for relief
in the record. See Valencia, 548 F.3d at 1262-63. In Valencia,
we concluded that the IJ was not required to inform an alien
that she could apply for asylum, withholding of removal, or
relief under the Convention Against Torture because the alien
had not indicated any plausible basis for those forms of relief.
Id. A rule to the contrary, we noted, would invite meritless
applications for relief, particularly “since an application may
well extend deportation proceedings for years.” Id. at 1264
(internal quotation marks omitted).
All of the relevant facts were known to the IJ at the time
of Lopez-Velasquez’s deportation hearing in February 1994.
Lopez-Velasquez had become an LPR under the SAW pro-
gram in December 1990, making him almost four years short
of fulfilling the seven-year domicile requirement under exist-
ing law. The fact that Lopez-Velasquez was a beneficiary of
the SAW program did not raise an inference of § 212(c) eligi-
bility, because the SAW statute did not contain an exception
to the longstanding definition of domicile and, until Ortega de
Robles, there was no suggestion from the BIA or this court
that the definition could be different.7In light of the facts
7
Lopez-Velasquez also asserts there is a colorable argument for measur-
ing SAW beneficiaries’ domicile as beginning at the date of SAW’s enact-
UNITED STATES v. LOPEZ-VELASQUEZ 19583
known by the IJ at the 1994 hearing, the IJ did not have a duty
to inform Lopez-Velasquez of relief for which he was ineligi-
ble.
IV. Conclusion
[9] The IJ’s duty is to inform the alien of “a reasonable
possibility that the petitioner may be eligible for relief.”
Moran-Enriquez, 884 F.2d at 423. This duty did not require
the IJ to inform Lopez-Velasquez of relief for which he was
not then eligible and for which he would become eligible only
with a change in law and the passage of eight months. Rather,
an IJ’s duty is limited to informing an alien of a reasonable
possibility that the alien is eligible for relief at the time of the
hearing. Because Lopez-Velasquez has not established that
his deportation order was invalid, his motion to dismiss his
§ 1326 indictment was improperly granted. For the foregoing
reasons, we reverse the district court’s order granting the
motion to dismiss the indictment.
REVERSED AND REMANDED.
ment, in which case he would have met the seven-year requirement at the
time of his hearing. However, Lopez-Velasquez offers no authority for this
assertion, or for the general proposition that an alien who entered the
country illegally could be considered lawfully present before taking an
affirmative step to change his or her status. Moreover, Lopez-Velasquez
has not provided a rationale for interpreting domicile for SAW beneficia-
ries more expansively than we did for general amnesty beneficiaries in
Ortega de Robles. We have previously noted that, to the contrary, general
amnesty beneficiaries might be treated more favorably because typically
they “have stronger durational ties to the United States.” Yao v. INS, 2
F.3d 317, 322 (9th Cir. 1993) (“While SAW applicants need prove resi-
dence in the United States for but ninety workdays, [general amnesty]
applicants must establish continuous physical presence since 1982, a
period approaching five years.”). Accordingly, we are unpersuaded.