FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-30241 Plaintiff-Appellant,

D.C. No.

v.  CR-06-00434-1-KI

EDMUNDO LOPEZ-VELASQUEZ,

OPINION Defendant-Appellee. 

Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

Argued and Submitted

July 9, 2008—Portland, Oregon

Filed June 23, 2009

Before: Harry Pregerson and Stephen Reinhardt,

Circuit Judges, and Lyle E. Strom,* District Judge.

Opinion by Judge Reinhardt

*The Honorable Lyle E. Strom, Senior United States District Judge for

the District of Nebraska, sitting by designation. 

7561
COUNSEL

Karin J. Immergut, Esq., United States Attorney, Johnathan S.

Haub, Esq., Kelly A. Zusman, Esq., Assistant United States

Attorneys, Portland, Oregon, for the plaintiff-appellant.

Terry Kolkey, Esq., Ashland, Oregon, for the defendantappellee.

OPINION

REINHARDT, Circuit Judge:

Edmundo Lopez-Velasquez waived his right to appeal and

was deported in 1994 in a group proceeding in which the

7564 UNITED STATES v. LOPEZ-VELASQUEZ
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(repealed 1996).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 reentry 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,

UNITED STATES v. LOPEZ-VELASQUEZ 7565
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”)1 initiated deportation proceedings based on

this conviction. 

On February 10, 1994, Lopez-Velasquez was brought

before an IJ for a group deportation hearing.2 He was not represented by counsel. The INS attorney, after reviewing LopezVelasquez’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 LopezVelasquez 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. 

1The Immigration and Naturalization Service was abolished on March

1, 2003 pursuant to section 471 of the Homeland Security Act of 2002,

Pub. L. 107-296, 116 Stat. 2135 (2002), which created the Department of

Homeland Security. 

2The government’s Opening Brief states that Lopez-Velasquez appeared

for a deportation hearing on or around February 12, 1994, but that appears

to be the date of deportation. 

7566 UNITED STATES v. LOPEZ-VELASQUEZ
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. § 1326.3 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 § 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 defects in

the underlying deportation proceeding, see, e.g., United States

v. Ahumada-Aguilar, 295 F.3d 943, 947 (9th Cir. 2002), and

affirm.

II. Analysis

Judicial review of a prior deportation order is appropriate

“in any subsequent proceeding in which the result of the

deportation proceeding is used to establish an element of a

criminal offense.” United States v. Mendoza-Lopez, 481 U.S.

828, 839 (1987). To succeed in such a collateral attack, the

defendant must demonstrate that: (1) he exhausted any administrative remedies available to him to appeal the removal

order, (2) the underlying proceedings at which the order was

issued improperly deprived him of the opportunity for judicial

review, and (3) the entry of the order was fundamentally

unfair. 8 U.S.C. § 1326(d). 

We have held that where the defendant’s waiver of the right

to appeal a removal order in the underlying removal proceeding was not “considered and intelligent,” he satisfies the first

two requirements of § 1326(d) because he was effectively

deprived of the right to administrative appeal and the opportunity for judicial review. See United States v. Pallares-Galan,

359 F.3d 1088, 1096 (9th Cir. 2004). The defendant’s waiver

3Lopez-Velasquez was also deported in 2003 after pleading guilty to

two counts of illegal entry in violation of 8 U.S.C. § 1325(a), however,

that deportation is not deemed to be material by either party. 

UNITED STATES v. LOPEZ-VELASQUEZ 7567
cannot be “considered” or “intelligent” if “the record contains

an inference that [the alien is] eligible for relief from deportation,” but the IJ fails to “advise [him] of this possibility and

give him the opportunity to develop the issue.” Id. (internal

quotation marks omitted); Mendoza-Lopez, 481 U.S. at 840.

As to the third requirement, an underlying removal order is

fundamentally unfair if “(1) [a defendant’s] due process rights

were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the

defects.” United States v. Ubaldo-Figueroa, 364 F.3d 1042,

1048 (9th Cir. 2004) (internal quotation marks and citations

omitted).

The district court held that Lopez-Velasquez’s waiver of

his right to appeal the 1994 deportation order was invalid

because the IJ failed to advise him of the possibility of his eligibility for relief under section 212(c) of the INA. At the time

of the deportation, § 212(c) authorized the Attorney General

to grant discretionary relief from deportation to permanent

resident aliens who had established seven consecutive years

of “lawful unrelinquished domicile” and had not served more

than a five-year term of imprisonment for an aggravated felony. 8 U.S.C. § 1182(c) (1994).4

The government concedes that Lopez-Velasquez would

have been eligible for the exercise of the Attorney General’s

discretion but for the seven-year legal residency requirement

for § 212(c) relief. It argues, however, that because only six

years and four months had transpired from the date that

Lopez-Velasquez submitted his SAW application to the date

of his deportation hearing, he had not met the residency

4Section 212(c) was subsequently repealed by the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), but relief

under the section remains available for aliens who pled guilty prior to the

enactment of IIRIRA. INS v. St. Cyr, 533 U.S. 289, 326 (2001). Our recent

en banc decision in Abebe v. Mukasey, 554 F.3d 1203, 1207 (9th Cir.

2009) does not affect this case, as it explicitly did not undermine the

authority of the BIA to grant § 212(c) relief from deportation. 

7568 UNITED STATES v. LOPEZ-VELASQUEZ
requirement and thus the IJ did not violate Lopez-Velasquez’s

due process rights by failing to inform him of his possible eligibility for § 212(c) relief.5

[1] The government errs by framing the pertinent question

as whether Lopez-Velasquez was definitively eligible for

§ 212(c) relief at the time of his hearing before the IJ. Aliens

in removal proceedings will often “not have the wherewithal

to make a complete showing of eligibility.” Moran-Enriquez

v. INS, 884 F.2d 420, 423 (9th Cir. 1989). The INA regulations therefore require that, “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 [alien] may be eligible for relief, the IJ must

advise [him] of this possibility and give him the opportunity

to develop the issue.” Id. (emphasis added). Where “the

record contains an inference that [the alien] is eligible for

relief from deportation,” but the IJ fails to “advise [him] of

this possibility,” United States v. Arrieta, 224 F.3d 1076,

1079 (9th Cir. 2000) (internal quotation mark omitted), the

alien’s waiver of his right to appeal is not considered or voluntary. See id. We have held that the record lacked an inference of eligibility of relief only when the possibility of relief

was remote. See, e.g., Valencia v. Mukasey, 548 F.3d 1261

(9th Cir. 2008) (holding that the IJ did not need to advise

Valencia of the eligibility for asylum when she did not suggest any basis for fear of returning to Mexico).

[2] The record in Lopez-Velasquez’s proceeding raised a

reasonable possibility of eligibility for § 212(c) relief. As the

5The government does not contend that Lopez-Velasquez had only three

years and two months of legal residency for § 212(c) relief under CastilloFelix v. INS, 601 F.2d 459 (9th Cir. 1979), the applicable law at the time,

most likely recognizing that IRCA has changed the rule governing the

computation of the length of residency for SAW beneficiaries and others.

As explained below, we so held the year after Lopez-Velasquez’s deportation proceeding. See Ortega de Robles v. INS, 58 F.3d 1355, 1360-61 (9th

Cir. 1995). 

UNITED STATES v. LOPEZ-VELASQUEZ 7569
government has conceded, the only doubt with regard to

Lopez-Velasquez’s eligibility for relief was whether he had

accumulated seven years of residency in the United States. As

to that issue, the record, as recited by the INS attorney at his

removal proceeding, showed that Lopez-Velasquez gained

temporary residency in October of 1987 when he applied for

the SAW program and his application was approved. This fact

raised the inference that he had been living in the country for

over seven years, as he was required to have performed agricultural services in the United States for at least 90 man-days

prior to May 1, 1986, i.e., at least since February 1, 1986, in

order to be eligible for SAW amnesty. February 1, 1986 is, of

course, more than eight years before the date of LopezVelasquez’s deportation hearing.

[3] The likely length of Lopez-Velasquez’s presence in the

United States, along with changes in immigration laws

brought about by IRCA and its amnesty programs, made it

reasonably possible that Lopez-Velasquez in fact had satisfied

the seven year requirement of “lawful unrelinquished domicile” necessary to qualify for § 212(c) relief. Although in

Castillo-Felix v. INS, 601 F.2d 459 (9th Cir. 1979), we determined that an alien must have permanent residency to establish such “lawful unrelinquished domicile,” the intervening

enactment of IRCA’s amnesty programs raised the reasonable

possibility that Castillo-Felix no longer remained controlling

law. Indeed, a year after Lopez-Velasquez’s removal proceeding, we held that IRCA superseded Castillo-Felix. See Ortega

de Robles v. INS, 58 F.3d 1355, 1360 (9th Cir. 1995). We

concluded that “lawful unrelinquished domicile” includes the

period of temporary residency granted by the § 245A general

amnesty provision of the IRCA, because during that time an

alien is lawfully and physically present and intends to remain

in the United States. See id. at 1359-61.

[4] We had no reason to consider in Ortega de Robles when

“lawful unrelinquished domicile” began for purposes of the

7570 UNITED STATES v. LOPEZ-VELASQUEZ
SAW program.6

 Lopez-Velasquez could reasonably have

argued, however, at the time of his removal proceeding, as he

does now, that it began as far back as at the date of IRCA’s

enactment for agricultural workers already in the United

States who could allege a nonfrivolous claim of SAW eligibility. Such workers could not be excluded or deported after the

date of IRCA’s passage and could be given temporary

employment authorization until June 1, 1987, when they

could apply for SAW amnesty. 8 U.S.C. § 1160(d).7 Under

this calculation, for § 212(c) purposes Lopez-Velasquez’s

“lawful unrelinquished domicile” could have begun on

November 6, 1986, the date of IRCA’s enactment. He therefore would have had over seven years of residency at the time

of his removal proceeding in February 1994.

We need not decide, however, whether Lopez-Velasquez

could have prevailed on his argument that his “lawful unrelinquished domicile” began at IRCA’s enactment or at a later

date that would have permitted him to accumulate the requi6The trigger date for “lawful unrelinquished domicile” under SAW and

§ 245A amnesty might indeed be more favorable to SAW beneficiaries

than to those applying for § 245A amnesty. Under § 245A of IRCA, the

alien was required to establish that he had “resided in the United States in

an unlawful status” prior to his application for amnesty, thus foreclosing

him from also arguing that he was in lawful status previously for purposes

of § 212(c) relief. See Castellon-Contreras v. INS, 45 F.3d 149, 154 (7th

Cir. 1995). By contrast, the SAW amnesty provision required only that the

alien establish that he had “resided in the United States.” Compare 8

U.S.C. § 1255a(a)(2)(A) (1994) with 8 U.S.C. § 1160(a)(1)(B) (1994). 

7The government argues that, even if his residency began at the time of

IRCA’s enactment, Lopez-Velasquez relinquished his continual residency

because he did not file a SAW application on June 1, 1987, the first day

on which an application could be filed. After June 1, 1987, however, he

could have presented a SAW application at any time to avoid removal, see

8 U.S.C. § 1160(d)(2), and he in fact did so a few months later. The filing

of the application served to preclude him from being excluded or deported,

and granted him authorization to work in the United States. See id. At the

least, there was an inference of residency that required the IJ to give notification of the possibility of eligibility for § 212(c) relief. 

UNITED STATES v. LOPEZ-VELASQUEZ 7571
site seven years. We need conclude only that, had LopezVelasquez been informed of the potential availability of

§ 212(c) relief, he could have appealed the IJ’s decision. This

opportunity would have been invaluable to him because, at

the time of his hearing, for purposes of § 212(c) relief, “lawful unrelinquished domicile” continued to accumulate until

“the Board render[ed] its decision in the case upon appeal

. . . .” Matter of Lok, 18 I & N Dec. 101, 105 (B.I.A. 1981),

aff’d, Lok v. INS, 681 F.2d 107 (2d Cir. 1982); Foroughi v.

I.N.S., 60 F.3d 570 (9th Cir. 1995).8 At the time of his

removal proceedings, Lopez-Velasquez had, even according

to the government, already accrued six years and four months

of “lawful unrelinquished domicile.” As the Department of

Justice noted, prior to adopting procedural reforms in 2002,

the BIA appeal process took a long time and cases “routinely

remained pending before the [BIA] for more than two years,

and some [had] taken more than five years to resolve.” Board

of Immigration Appeals: Procedural Reforms to Improve

Case Management, 67 Fed. Reg. 54,878, 54,879 (Aug. 26,

2002). Whether or not Lopez-Velasquez prevailed on his

appeal on his theory regarding the starting date of his lawful

unrelinquished domicile, he would, during the pendency of

that appeal, have been able to accumulate the eight months

that he was missing according to the government, and thus

would have accrued the requisite seven years of residency that

would have made him eligible for § 212(c) relief. See United

States v. Ahumada-Aguilar, 295 F.3d 943, 951-52 (9th Cir.

2002) (holding that alien was prejudiced by his waiver of

appeal because he would have accumulated the final ten

months towards his residency requirement for § 212(c) relief

during his appeal); United States v. Jimenez-Marmolejo, 104

F.3d 1083, 1085-86 (9th Cir. 1996) (holding that an alien who

was two months away from the seven year mark at the time

8When Congress repealed § 212(c) relief under IIRIRA and replaced it

with cancellation of removal, it specified that the period of residency that

is required for that relief ends when the alien is served with a notice to

appear or commits a certain criminal offense. 8 U.S.C. § 1229b(d)(1). 

7572 UNITED STATES v. LOPEZ-VELASQUEZ
of deportation proceedings would have become eligible for

§ 212(c) had he appealed). 

[5] Given the changes in immigration law, the length of

Lopez-Velasquez’s residency in the United States, and his

proximity, under the government’s theory, to having accumulated seven years of temporary residency under SAW, the IJ

should have recognized a “reasonable possibility” that LopezVelasquez might be eligible for § 212(c) relief at the time of

the proceedings. Had the IJ informed him of such a possibility, Lopez-Velasquez could have appealed and, even if he had

lost, would have accumulated the remaining time necessary to

establish the seven years residency for § 212(c) relief.

Because the IJ failed to advise him of the possibility of eligibility, or even of the existence of such relief, LopezVelasquez’s waiver of his right to appeal was defective and

he was improperly deprived of the opportunity for judicial

review. See, e.g., Pallares-Galan, 359 F.3d at 1103; United

States v. Leon-Paz, 340 F.3d 1003, 1007 (9th Cir. 2003).

* * *

[6] We also conclude that Lopez-Velasquez’s prior deportation order was “fundamentally unfair” under § 1326(d)(3)

because he suffered prejudice as a result of his defective

deportation proceeding. See, e.g., Pallares-Galan, 359 F.3d at

1103. To demonstrate prejudice, Lopez-Velasquez need only

show that he had “plausible grounds for relief.” JimenezMarmolejo, 104 F.3d at 1086. The requirement to show such

“plausible grounds” does not present a very high hurdle, given

that prior to IIRIRA, more than half of § 212(c) applications

resulted in the granting of relief by the BIA. See INS v. St.

Cyr, 553 U.S. 289 & n.5. 

In determining whether to exercise its discretion to grant a

§ 212(c) petition, the BIA considers “all the facts and circumstances of a particular case, taking into account the social and

humane considerations presented in an applicant’s favor and

UNITED STATES v. LOPEZ-VELASQUEZ 7573
balancing them against the adverse factors that evidence the

applicant’s undesirability as a permanent resident.” YepesPrado v. INS, 10 F.3d 1363, 1365-66 (9th Cir. 1993). The

favorable factors include: “1) family ties within the United

States; 2) residence of long duration in this country (particularly when residence began at a young age); 3) hardship to the

petitioner or petitioner’s family if relief is not granted; 4) service in the United States armed forces; 5) a history of employment; 6) the existence of business or property ties; 7)

evidence of value and service to the community; 8) proof of

rehabilitation if a criminal record exists; 9) other evidence

attesting to good character.” Id. at 1366. Negative factors

include: “1) the nature and underlying circumstances of the

exclusion or deportation ground at issue; 2) additional violations of the immigration laws; 3) the existence, seriousness

and recency of any criminal record; 4) other evidence of bad

character or the undesirability of the applicant as a permanent

resident.” Id.

[7] Lopez-Velasquez could have offered many facts and

circumstances favoring the discretionary grant of § 212(c)

relief, including nearly 13 years of residency and employment

in the United States, and hardship to him, his United States

citizen wife, and two young United States citizen children. He

had only one criminal conviction, which resulted in an eight

months sentence. Lopez-Velasquez has more than met his

burden of demonstrating plausible grounds for relief, and the

government has not contended otherwise. 

III. Conclusion

We conclude that Lopez-Velasquez’s prior deportation was

“fundamentally unfair” and cannot serve as the basis for his

illegal reentry conviction because he was prejudiced by the

IJ’s failure to inform him of his possible eligibility for

§ 212(c) relief. We therefore affirm the district court’s dis7574 UNITED STATES v. LOPEZ-VELASQUEZ
missal of his indictment for illegal reentry under 8 U.S.C.

§ 1326.9

AFFIRMED.

9

In Lopez-Velasquez v. Mukasey, 308 Fed. App’x 236 (9th Cir. 2009),

a memorandum disposition in which we reviewed two administrative

orders in connection with a pending deportation proceeding, we rejected

a collateral attack on Lopez-Velasquez’s 1994 deportation order. The petition before us then did not, however, raise the same legal or factual questions as does the present appeal. First, in challenging the prior deportation

order in a reinstated deportation proceeding, the applicable standard of

review for the collateral challenge is “gross miscarriage of justice.” Id.;

Garcia de Rincon v. DHS, 539 F.3d 1133, 1138 (9th Cir. 2008). Here,

because this appeal arises in a criminal case, the more lenient standard in

§ 1326(d) applies — “fundamental unfairness,” which is construed as simply a violation of due process such as a failure to notify an alien of potentially available discretionary relief. See Alvarenga-Villalobos v. Ashcroft,

271 F.3d 1169, 1173 (9th Cir. 2001) (explaining difference in standards

applied to collateral attacks in non-criminal deportation cases and in criminal prosecutions); Ramirez-Molina v. Ziglari, 436 F.3d 508, 514 n.9 (5th

Cir. 2006) (noting difference in case law between a collateral attack in the

context of a petition for review of a reinstatement decision and criminal

prosecution for illegal reentry). Second, in the memorandum disposition

we applied Castillo-Felix which had not been overruled at the time of

Lopez-Velasquez’s hearing and assumed that he lacked three years and

nine months of lawful unrelinquished domicile; here, however, the government concedes that, under Ortega de Robles, which it acknowledges to

be controlling, Lopez-Velasquez was short of the requisite seven years by

only eight months. Finally, we did not consider in the memorandum disposition that at the time of his removal proceedings Lopez-Velasquez had a

reasonable possibility of eligibility for § 212(c) relief on the basis of an

unsettled construction of the term “lawful unrelinquished domicile,” and

that, in any event, he would have accumulated the remaining part of the

requisite seven years while pursuing his argument on appeal. All three of

these considerations require that in assessing the constitutionality of the

prior deportation proceedings for purposes of this criminal prosecution, we

reach a different result than that which we previously reached with respect

to our review of a purely administrative proceeding. To the extent that any

dicta in the memorandum disposition purport to resolve any issues presented in this entirely dissimilar type of proceeding, we are not bound by

them. 

UNITED STATES v. LOPEZ-VELASQUEZ 7575