Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding D.C. No. 3:10-CR-02444-LAB-1
Argued and Submitted December 7, 2011Pasadena, California
Before: Dorothy W. Nelson, Ronald M. Gould, and Sandra S. Ikuta, Circuit Judges.
Defendant Antonio Melendez-Castro appeals his conviction under 8 U.S.C. § 1326(b) for illegal re-entry into the United States after being deported. Melendez-Castro challenges his conviction based on a collateral attack of the underlying removal order. We hold that a defect in Melendez-Castro's 1997 immigration proceedings, that he was not meaningfully informed of his eligibility for voluntary departure, violated his due process rights. However, the district court did not consider fully whether Melendez-Castro suffered prejudice. We therefore remand for the district court to address this issue in the first instance.
Melendez-Castro is a native and citizen of Mexico who became a legal permanent resident of the United States in 1988. For close to twenty years, Melendez-Castro lived in Stockton, California, where he supported himself and his family by working as a plumber, electrician, mechanic, and assistant in his father's tire shop. While his father is deceased, his mother and sister reside legally in the Central Valley of California, and his U.S.-citizen daughter lives in Texas.
On November 5, 1997, the Immigration and Naturalization Service ("INS") served Melendez-Castro with a Notice to Appear ("NTA"), alleging that he was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) for having been convicted of two crimes involving moral turpitude, namely, petty theft and petty theft with a prior.*fn1
On November 25, 1997, Melendez-Castro appeared pro se for a group deportation hearing. The immigration judge ("IJ") determined that Melendez-Castro was deportable as charged. The IJ then discussed whether Melendez-Castro was statutorily eligible to apply for cancellation of removal. The IJ explained at length the legal requirements of cancellation of removal, why Melendez-Castro likely qualified, the process of applying for this relief, and the time it would take to do so. Melendez-Castro decided not to apply.
Subsequently, the IJ summarily discussed voluntary departure:
The only other application you may be eligible for is something called voluntary departure. Voluntary departure is available to anyone who has not been convicted of an aggravated felony. I can deny this in my discretion and, and [sic] even if you were to apply for voluntary departure I wouldn't grant it to you. I don't grant voluntary departure to anyone convicted of a crime in the United States, so I will be denying any other case of voluntary departure that you may make, but I need to go through that in the records, so that you understand.
Upon further questioning by the IJ, Melendez-Castro stated that he understood the IJ's decision. At the close of the immigration proceedings, the IJ signed an order removing Melendez-Castro to Mexico. ...