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United States v. Lopez-Velasquez

June 23, 2009


Appeal from the United States District Court for the District of Oregon Garr M. King, District Judge, Presiding. D.C. No. CR-06-00434-1-KI.

The opinion of the court was delivered by: Reinhardt, Circuit Judge


Argued and Submitted July 9, 2008 -- Portland, Oregon.

Before: Harry Pregerson and Stephen Reinhardt, Circuit Judges, and Lyle E. Strom,*fn1 District Judge.


Edmundo Lopez-Velasquez waived his right to appeal and was deported in 1994 in a group proceeding in which the immigration judge ("IJ") did not advise him of the availability of relief from deportation under section 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c) (repealed 1996). He had a United States citizen wife and two young United States citizen children at the time, and would surely have been a strong candidate for this discretionary relief had he applied for it.

Over ten years later, in 2006, Lopez-Velasquez was indicted for illegal re-entry in violation of 8 U.S.C. § 1326. The district court dismissed the indictment, holding that the 1994 deportation order was invalid due to the IJ's failure to inform him of his apparent eligibility for § 212(c) relief. We affirm.

I. Background

In 1986, as part of the Immigration Reform and Control Act ("IRCA"), Congress enacted the Special Agricultural Workers program ("SAW"), a one-time amnesty program to stabilize the agricultural workforce by legalizing undocumented aliens already working in agriculture. See 8 U.S.C. § 1160. Through the SAW program, an alien who had resided in the United States and performed seasonal agricultural services for at least 90 man-days during the 12-month period ending on May 1, 1986, could obtain temporary legal resident status, which would automatically adjust to permanent resident status after some period of time. 8 U.S.C. § 1160(a). The SAW statute specified that the applications would be accepted during the 18-month period beginning on June 1, 1987 and ending on November 30, 1988. 8 U.S.C. § 1160(a)(1)(A); 8 C.F.R. § 210.2(c)(1).

One of the beneficiaries of the SAW program was Edmundo Lopez-Velasquez, a native and citizen of Mexico, who came to the United States in the early 1980s and held a number of seasonal agricultural jobs in Oregon. He applied for legal status under the SAW program in October of 1987, and his application was granted in March of the following year.

In 1987, Lopez-Velasquez married a United States citizen, with whom he eventually had two children, both of whom are United States citizens. He was living with his wife and children when he was arrested for delivery of a controlled substance in 1993. He pled guilty and was sentenced to eight months in state prison. The Immigration and Naturalization Service ("INS")*fn2 initiated deportation proceedings based on this conviction.

On February 10, 1994, Lopez-Velasquez was brought before an IJ for a group deportation hearing.*fn3 He was not represented by counsel. The INS attorney, after reviewing Lopez-Velasquez's file, informed the IJ that Lopez-Velasquez gained temporary residence in October of 1987 and permanent residence in December of 1990. After asking each alien about the circumstances of his case, the IJ asked the INS attorney whether he was "aware of any form of relief available for any [of] these individuals," and the attorney responded, "I don't believe so[,] Judge." The IJ then ordered that all aliens at the hearing be deported to Mexico without advising Lopez-Velasquez of any potential eligibility for relief. The IJ also told the members of the group that they had the right to appeal the decision by filing a written notice of appeal within ten days. Lopez-Velasquez apparently waived his right to appeal, and was deported. At that time, his American citizen daughter was five years old and his American citizen son was four.

Lopez-Velasquez subsequently returned to the United States and more than ten years later, in October 2006, was indicted for knowingly and unlawfully reentering in violation of 8 U.S.C. § 1326.*fn4 He moved to dismiss the indictment on the ground that the original 1994 deportation order was invalid because the IJ failed to inform him of the availability of ยง 212(c) relief, and thus violated his due process rights. The district court granted the motion. We review de novo its dismissal of the indictment based on due process ...

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