United States v. Fernando Ramos-Cruz

MEMORANDUM

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 , 125 S.Ct. 377 , 160 L.Ed.2d 271 (2004); Montiel-Barraza v. INS, 275 F.3d 1178, 1180 (9th Cir.2002). That this error became apparent only in light of later-decided 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…