FILED
NOT FOR PUBLICATION DEC 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50670
Plaintiff - Appellee, D.C. No. 3:08-cr-04494-JLS-1
v.
MEMORANDUM *
FERNANDO RAMOS-CRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted December 9, 2010
Pasadena, California
Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.
The IJ’s classification of Ramos-Cruz’s felony DUI conviction under
California Vehicle Code § 23152(b) as an aggravated felony was an error. See
Leocal v. Ashcroft, 543 U.S. 1, 11 (2004); Montiel-Barraza v. INS, 275 F.3d 1178,
1180 (9th Cir. 2002). That this error became apparent only in light of later-decided
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
authority does not alter our analysis. Compare United States v. Pallares-Galan,
359 F.3d 1088, 1103–04 (9th Cir. 2004), with Avila-Sanchez v. Mukasey, 509 F.3d
1037, 1040–41 (9th Cir. 2007), and Alvarenga-Villalobos v. Ashcroft, 271 F.3d
1169, 1172–73 (9th Cir. 2001). Therefore, the IJ’s failure to inform Ramos-Cruz
of his eligibility for relief from removal violated Ramos-Cruz’s due process rights,
and his waiver of appeal from the removal order cannot bar him from collaterally
attacking that order. See 8 U.S.C. § 1326(d)(1)–(2); United States v. Muro-Inclan,
249 F.3d 1180, 1183 (9th Cir. 2001) (“The exhaustion requirement of 8 U.S.C. §
1326(d) cannot bar collateral review of a deportation proceeding when the waiver
of right to an administrative appeal did not comport with due process.”).
Ramos-Cruz has also demonstrated that he was prejudiced by the IJ’s error,
see 8 U.S.C. § 1326(d)(3), because the sole basis for his removal was that he had
committed an aggravated felony, namely, his felony DUI. See United States v.
Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). The 2004 and 2008
reinstatement orders are irrelevant to the question of prejudice, because a
reinstatement of an invalid removal order is itself invalid. United States v.
Arias-Ordonez, 597 F.3d 972, 978 (9th Cir. 2010).
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Accordingly, we reverse Ramos-Cruz’s conviction and remand to the district
court with instructions to vacate the underlying indictment. Because we reverse
Ramos-Cruz’s conviction, we need not reach his arguments regarding his sentence.
REVERSED AND REMANDED.
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