FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 10-50620 Plaintiff-Appellee,

D.C. No.

v.  3:10-CR-02444-

ANTONIO MELENDEZ-CASTRO, AKA LAB-1

Antonio Melendres-Castro, OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Argued and Submitted

December 7, 2011—Pasadena, California

Filed January 18, 2012

Before: Dorothy W. Nelson, Ronald M. Gould, and

Sandra S. Ikuta, Circuit Judges.

Per Curiam Opinion

389
COUNSEL

Amy B. Kapoor, Federal Defenders of San Diego, Inc., for the

defendant-appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter,

Assistant U.S. Attorney Chief, Appellate Section Criminal

Division, Randy K. Jones, Assistant U.S. Attorney, for the

plaintiff-appellee.

UNITED STATES v. MELENDEZ-CASTRO 391
OPINION

PER CURIAM:

Defendant Antonio Melendez-Castro appeals his conviction

under 8 U.S.C. § 1326(b) for illegal reentry 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.

I

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.1

1The first petty theft for which he was charged involved stealing three

pairs of boxer shorts valued at six dollars. 

392 UNITED STATES v. MELENDEZ-CASTRO
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. Melendez-Castro did not appeal

and was deported that day. 

After this deportation, Melendez-Castro returned to the

United States. On June 23, 2010, he was indicted for one

count of illegal reentry after deportation, in violation of 8

U.S.C. § 1326. On August 25, 2010, he filed a motion to dismiss the indictment, arguing that the illegal reentry charge

was based on an invalid deportation. The district court denied

the motion, and a jury convicted him of illegal reentry after

UNITED STATES v. MELENDEZ-CASTRO 393
deportation in violation of 8 U.S.C. § 1326(b). The district

court sentenced Melendez-Castro to 33 months in custody. He

filed a timely notice of appeal.

II 

We have jurisdiction under 28 U.S.C. § 1291. We review

a collateral attack to a deportation order de novo. United

States v. Lopez-Velasquez, 629 F.3d 894, 896-97 (2010) (en

banc).

III

[1] A defendant charged with illegal reentry pursuant to 8

U.S.C. § 1326 has a due process right to bring a collateral

attack challenging the validity of his underlying deportation

order because it serves as a predicate element of his conviction. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047

(9th Cir. 2004). To succeed on a collateral attack under 8

U.S.C. § 1326(d), a defendant must demonstrate: “(1) that he

exhausted all administrative remedies available to him to

appeal his removal order, (2) that the underlying removal proceedings at which the order was issued ‘improperly deprived

[him] of the opportunity for judicial review’ and (3) that ‘the

entry of the order was fundamentally unfair.’ ” United States

v. Ortiz-Lopez, 385 F.3d 1202, 1203-04 (9th Cir. 2004) (per

curiam) (quoting 8 U.S.C. § 1326(d)). “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.” Ubaldo-Figueroa, 364 F.3d at 1048

(citation and quotations omitted).

[2] The Due Process Clause of the Fifth Amendment

requires that an alien in immigration proceedings be “made

aware that he has a right to seek relief” so that he has “a

meaningful opportunity to appeal the fact that he was not

advised of that right.” United States v. Arrieta, 224 F.3d 1076,

394 UNITED STATES v. MELENDEZ-CASTRO
1079 (9th Cir. 2000) (“[W]here the record contains an inference that the petitioner is eligible for relief from deportation,

the IJ must advise the alien of this possibility and give him the

opportunity to develop the issue.”) (internal quotations and

citation omitted). This includes providing an alien with the

opportunity to apply for relief. See id. An alien applying for

such relief has a right to present evidence in support of the

claim. See 8 U.S.C. § 1229a(b)(4)(B); 8 C.F.R. § 1240.1(c);

8 C.F.R. § 1240.11(a)(2).

[3] Upon review of the record, we conclude that

Melendez-Castro was not meaningfully advised of his right to

seek voluntary departure. Although the IJ at first told

Melendez-Castro that he was eligible for voluntary departure,

almost in the same breath the IJ told him that he would not

get the relief if he applied for it because he had a criminal

record. A reasonable person in Melendez-Castro’s position

would have been discouraged from applying for voluntary

departure to an extent that it is as if he was told that he did

not qualify for this relief. Melendez-Castro knew he had a

criminal record, and heard the IJ state without qualification

that he would not get this relief. It is no wonder that he did

not formally apply. The IJ never asked Melendez-Castro

whether he wanted to apply and, instead, said that any such

application would be futile. As a result, Melendez-Castro

never had a genuine opportunity to apply for voluntary departure or to present evidence of the factors favoring this relief.

See generally Campos-Granillo v. INS, 12 F.3d 849, 852 n.8

(9th Cir. 1993).

[4] An alien is “barred under 8 U.S.C. § 1326(d) from collaterally attacking his underlying removal order . . . ‘if he validly waived the right to appeal that order during the

deportation proceedings.’ ” Ubaldo-Figueroa, 364 F.3d at

1048 (citing United States v. Muro-Inclan, 249 F.3d 1180,

1182 (9th Cir. 2001), cert. denied, 534 U.S. 879 (2001)).

Melendez-Castro did not appeal the IJ’s decision, and that

presents a potential stumbling block to his collateral attack.

UNITED STATES v. MELENDEZ-CASTRO 395
But because of the underlying defect in Melendez-Castro’s

deportation hearing identified above, we hold that his waiver

of appeal was neither “considered” nor “intelligent,” and it is

therefore invalid. Ubaldo-Figueroa, 364 F.3d at 1049; Arrieta, 224 F.3d at 1079 (holding valid waiver must be “considered and intelligent”). As in Arrieta, “an alien who is not

made aware that he has a right to seek relief necessarily has

no meaningful opportunity to appeal the fact that he was not

advised of that right.” Arrieta, 224 F.3d at 1079. Consequently, Melendez-Castro is “exempted from the exhaustion

bar.” Ubaldo-Figueroa, 364 F.3d at 1049; Muro-Inclan, 249

F.3d at 1183 (“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.”). Because MelendezCastro’s waiver was not valid, he was “deprived of his right

to that appeal and thus to a meaningful opportunity for judicial review.” United States v. Pallares-Galan, 359 F.3d 1088,

1096 (9th Cir. 2004) (citing United States v. Leon-Paz, 340

F.3d 1003, 1005 (9th Cir. 2003)). 

[5] Nonetheless, to succeed on a collateral attack,

Melendez-Castro must also show prejudice. Melendez-Castro

“does not have to show that he actually would have been

granted relief,” Ubaldo-Figueroa, 364 F.3d at 1050, but “that

he had a ‘plausible’ ground for relief from deportation.” Id. at

1050 (citing Arrieta, 224 F.3d at 1079).

[6] Melendez-Castro met the statutory requirements for

pre-conclusion voluntary departure. 8 U.S.C. § 1229c(a); 8

C.F.R § 1240.26(b). Although he had a criminal record starting with his petty theft of boxer shorts, he also had positive

equities that could have been considered in deciding whether

to grant him this relief, including his family ties and history

of living and working in the United States. See CamposGranillo, 12 F.3d at 852 n.8. Because the district court erroneously found no due process violation, it did not fully analyze

the issue of prejudice, which must be shown for a successful

396 UNITED STATES v. MELENDEZ-CASTRO
collateral attack. We remand to the district court for consideration of prejudice in the first instance, and the district court

should set forth on the record the reasons for its ultimate decision. 

REMANDED.

UNITED STATES v. MELENDEZ-CASTRO 397