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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Marco Antonio Felix-Coronado, 

Defendant. 

No. CR-15-01585-PHX-NVW

ORDER 

Before the Court is Defendant’s Motion to Dismiss Indictment (Doc. 21) and the 

parties’ accompanying briefs. Also before the Court is Defendant’s Motion for 

Revocation of the December 4, 2015 Order of Detention (Doc. 12) and Defendant’s 

Motion for Order Setting Conditions of Release (Doc. 30). For the reasons that follow, 

the Motion to Dismiss Indictment will be granted, rendering moot the Motion for 

Revocation of the Order of Detention and the Motion for Order Setting Conditions of 

Release. 

I. BACKGROUND 

Marco Antonio Felix-Coronado, a native of Mexico, entered the United States 

without inspection in or around 1988. In 1996 he was convicted of violating Arizona 

Revised Statute § 28-697(A)(1) (“Arizona’s Aggravated DUI statute”).1

 In subsequent 

 1

 The statute has since been renumbered as § 28-1383(A)(1). 

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deportation proceedings he was found deportable, and he moved for relief in the form of 

suspension of deportation or voluntary departure. 

On May 4, 2001, the presiding immigration judge (“IJ”) found Felix-Coronado 

ineligible for the requested relief after determining that his 1996 conviction under 

Arizona’s Aggravated DUI statute was for a crime involving moral turpitude. (Doc. 21-1 

at 45.) In making this determination, the IJ expressly relied on a recent Board of 

Immigration Appeals (“BIA”) decision, In Re Lopez-Mesa. That decision, according to 

the IJ, “considered the Arizona statute and found it specifically to be a crime involving 

moral turpitude.” (Id. (citing In Re Lopez-Mesa, Int. Dec. 3423 (BIA 1999)).) 

Accordingly, the IJ concluded: “I have no alternative but to find that [Felix-Coronado] is 

deportable as charged and has no relief from deportation at this time.” (Id. at 46.) The 

BIA summarily affirmed, and Felix-Coronado was removed from the country. 

In 2003, the Ninth Circuit rejected the BIA’s interpretation of Arizona’s 

Aggravated DUI statute set forth in In Re Lopez-Mesa. Hernandez-Martinez v. Ashcroft, 

329 F.3d 1117 (9th Cir. 2003). The court explained that Arizona’s Aggravated DUI 

statute is divisible: It prohibits not only “driving” under the influence without a license, 

but also having “actual physical control” of a vehicle under the influence without a 

license. Id. at 1118. Although the court did not opine as to whether a violation of the 

“driving” prong involves moral turpitude, it indicated that a violation of the “actual 

physical control” prong does not involve moral turpitude. Id. at 1118-19. The court 

concluded that the BIA’s “error of law” in In Re Lopez-Mesa “was not to treat the statute 

as divisible.” Id. at 1119. 

In 2014, Felix-Coronado was found in the United States again. On December 22, 

2015, he was indicted for illegal reentry in violation of 8 U.S.C. § 1326(a). He now 

moves to dismiss the indictment, claiming the underlying 2001 removal order violated his 

due process rights because the IJ erroneously told him he was ineligible for relief from 

removal. 

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II. ANALYSIS 

Because the underlying removal order is a predicate element of an illegal reentry 

offense under 8 U.S.C. § 1326(a), Felix-Coronado may collaterally attack the removal 

order under the due process clause. United States v. Pallares-Galan, 359 F.3d 1088, 

1095 (9th Cir. 2004). To sustain a collateral attack, Felix-Coronado must show that (1) 

he “exhausted any administrative remedies” against the order, (2) the deportation 

proceedings at which the order was issued “deprived him of the opportunity for judicial 

review,” and (3) the order was “fundamentally unfair.” 8 U.S.C. § 1326(d). 

Here, the government contends only that Felix-Coronado has not shown 

fundamental unfairness. To show fundamental unfairness, Felix-Coronado must 

demonstrate that (1) his due process rights were violated by defects in the underlying 

deportation proceeding and (2) he suffered prejudice as a result. Pallares-Galan, 359 

F.3d at 1095. 

A. Due Process Violation 

An alien in removal proceedings has a due process right to be informed of his or 

her ability to apply for relief from removal. United States v. Vidal-Mendoza, 705 F.3d 

1012, 1015 (9th Cir. 2013). The Ninth Circuit has derived this right from an immigration 

regulation that requires IJs to inform aliens of their “apparent eligibility” to apply for 

certain relief. Id. (quoting 8 C.F.R. § 1240.11(a)(2)). This right is violated when the IJ 

either fails to give the alien any information about the relief for which the alien is 

“apparently eligible” or when the IJ erroneously tells the alien that no relief is possible. 

United States v. Gonzales-Flores, 804 F.3d 920, 926-97 (9th Cir. 2015). 

Felix-Coronado alleges a violation of the latter sort, claiming the IJ erroneously 

told him he was ineligible for relief from removal. This kind of error can serve as a basis 

for challenging a removal order if the error resulted from the IJ’s misapplication of 

existing precedent. Vidal-Mendoza, 705 F.3d at 1017. Misapplication of existing 

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precedent is actionable because IJs have a duty to inform aliens about their apparent 

eligibility for relief under the applicable law at the time. Id. By contrast, an IJ’s failure 

to anticipate future changes in law when determining eligibility for relief is not 

actionable. Id. After all, IJs are not expected to be clairvoyant when discharging their 

duty to inform. Id.

Felix-Coronado contends the IJ’s conclusion—that he was ineligible for relief 

because he had been convicted of a crime involving moral turpitude—was false in light 

of then-existing precedent. Specifically, he claims the IJ failed to treat Arizona’s 

Aggravated DUI statute as divisible, thereby failing to apply Taylor v. United States, 495 

U.S. 575 (1990) and its progeny. 

The government contends the IJ’s conclusion about Felix-Coronado’s eligibility 

for relief was correct in light of then-existing precedent, because the IJ followed the 

BIA’s decision in In Re Lopez-Mesa, 22 I. & N. Dec. 1188 (BIA 1999). The government 

views Felix-Coronado as attempting to take advantage of a subsequent change in law that 

occurred when the Ninth Circuit rejected In Re Lopez-Mesa years later. See HernandezMartinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003). 

Whether the IJ correctly applied precedent as it existed fifteen years ago, in the 

ever-changing field of immigration law, is a somewhat conjectural inquiry. Nevertheless, 

it appears that the IJ did misapply precedent in a way that made his conclusion about 

Felix-Coronado’s eligibility for relief erroneous. 

1. Which Precedent the IJ Misapplied 

First, some clarification is in order. Contrary to Felix-Coronado’s theory, the IJ 

cannot be faulted for failing to apply Taylor and its progeny, as such, in determining 

whether Felix-Coronado’s conviction constituted a crime involving moral turpitude. 

Indeed, it would have been strange for the IJ to cite Taylor. On its face, Taylor was a 

decision about whether a crime was a “burglary” for federal sentencing purposes. See

495 U.S. at 577-78. Over time, the Ninth Circuit applied Taylor’s methodology—later 

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known as the “categorical” and “modified categorical” approaches—in other contexts. 

See, e.g., United States v. Anderson, 989 F.2d 310, 312 (9th Cir. 1993) (applying Taylor

to determine whether a crime was “extortion”); Sareang Ye v. I.N.S., 214 F.3d 1128, 1130 

(9th Cir. 2000) (applying Taylor to determine whether a crime was “aggravated felony” 

for immigration purposes). But the Ninth Circuit did not begin to invoke Taylor in 

determining whether crimes involved “moral turpitude” until after the IJ’s 2001 removal 

order. See, e.g., Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1017 (9th Cir. 2005). 

Nor can the IJ be faulted for failing to apply the correct general methodology to 

Felix-Coronado’s case. Before 2001 the Ninth Circuit used an approach substantively 

similar to Taylor’s “categorical” approach in determining whether a conviction involved 

“moral turpitude” for immigration purposes. See Goldeshtein v. I.N.S., 8 F.3d 645, 647 

(9th Cir. 1993) (“For a crime to involve moral turpitude within the meaning of the INA, 

the crime must necessarily involve moral turpitude.” (citations omitted)). The BIA also 

used a similar approach. See Matter of Short, 20 I. & N. Dec. 136, 137-38 (BIA 1989) 

(“If [the statute under which the conviction occurred] defines a crime in which turpitude 

necessarily inheres, then the conviction is for a crime involving moral turpitude . . . .”). 

The IJ indirectly applied this sort of categorical approach to Felix-Coronado’s case by 

relying on In Re Lopez-Mesa, where the BIA purported to use this approach in 

interpreting Arizona’s Aggravated DUI statute. 22 I. & N. Dec. at 1193-94 (citing 

Goldeshtein and Matter of Short). 

However, although the IJ applied the correct general methodology in evaluating 

Felix-Coronado’s conviction, he missed a crucial step: He did not determine whether 

Arizona’s Aggravated DUI statute was divisible into multiple offenses, and if so, which 

offense Felix-Coronado committed. Under then-existing precedent, this divisibility 

analysis was necessary to determine whether a conviction under a particular statute was, 

for immigration purposes, a crime involving moral turpitude. In Re Sweetser, 22 I. & N. 

Dec. 709, 713-14 (BIA 1999) (citing BIA opinions); see also Wadman v. INS, 329 F.2d 

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812, 814 (9th Cir. 1964). By failing to conduct this divisibility analysis, the IJ 

misapplied existing precedent. 

The government contends that, far from misapplying precedent, the IJ correctly 

applied the precedent most on point: In Re Lopez-Mesa. After all, the question before the 

IJ was whether Felix-Coronado’s conviction under Arizona’s Aggravated DUI statute 

was for a crime involving moral turpitude, and In Re Lopez-Mesa decided that 

convictions under that statute were “for a crime involving moral turpitude.” 22 I. & N. 

Dec. at 1196. 

The ultimate force of the government’s argument depends on what the BIA’s 

precise holding in In Re Lopez-Mesa was. The BIA apparently did not abolish the longstanding requirement of divisibility analysis, as the opinion did not mention divisibility. 

Thus, the BIA’s holding can be construed in one of two ways: 

Interpretation 1: Arizona’s Aggravated DUI statute is not divisible, and 

all convictions under the statute are for crimes 

involving moral turpitude. 

On this view, In Re Lopez-Mesa would have directly governed Felix-Coronado’s case. 

The IJ would not have needed to conduct a divisibility analysis because In Re LopezMesa would have already decided the question. 

Interpretation 2: Convictions for “driving” in violation of Arizona’s 

Aggravated DUI statute are for crimes involving moral 

turpitude. 

On this view, In Re Lopez-Mesa would have governed Felix-Coronado’s case only if he 

had been convicted for “driving” in violation of the statute. The IJ would have needed to 

conduct a divisibility analysis to determine whether Felix-Coronado was convicted under 

the statute’s “driving” prong, before deciding whether In Re Lopez-Mesa applied. 

Interpretation 2 is the more natural reading of the BIA’s holding. The BIA’s 

opinion does not mention divisibility and therefore should not be construed as deciding 

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whether Arizona’s Aggravated DUI statute was divisible. And by its own terms, the 

opinion—at least in critical parts—seems limited to the “driving” prong of the statute. 

See, e.g., 22 I. & N. Dec. at 1195 (“A conviction for aggravated DUI under section 

28-697(A)(1) . . . requires a showing that the offender was ‘knowingly’ driving . . . .” 

(emphasis added)), 1196 (“We find that a person who drives while under the influence, 

knowing that he or she is absolutely prohibited from driving, commits a crime . . . 

[involving] moral turpitude.” (emphases added)). 

Interpretation 2 also squares with the Ninth Circuit’s view of the decision as 

expressed in Hernandez-Martinez v. Ashcroft, 329 F.3d 1117 (9th Cir. 2003). There, the 

court concluded that the BIA’s “error of law” in In Re Lopez-Mesa was “not to treat the 

statute as divisible.” Id. at 1117-19. The government construes this language as 

“imposing” a requirement that Arizona’s Aggravated DUI statute be treated as divisible 

and “overturning” the BIA’s contrary determination. (See Doc. 26 at 17.) This 

description goes too far. The court did not “impose” a new requirement, but simply 

conducted the divisibility analysis that, as the court pointed out, was already required 

under Ninth Circuit and BIA precedent. 329 F.3d at 1118. And the court did not 

“overturn” a BIA determination that the statute was not divisible, so much as reject a BIA 

interpretation that failed to address divisibility. Accord Marmolejo-Campos v. Holder, 

558 F.3d 903, 906 (9th Cir. 2009) (describing In Re Lopez-Mesa as “failing to assess” 

Arizona’s Aggravated DUI statute as divisible). 

In other words, In Re Lopez-Mesa put the cart before the horse. It decided that a 

conviction under Arizona’s Aggravated DUI statute was for a crime involving moral 

turpitude without deciding the analytically prior questions of whether the statute was 

divisible and, if so, which prong gave rise to the conviction. Thus, by applying In Re 

Lopez-Mesa without conducting a divisibility analysis, the IJ made a similar mistake. He 

relied on a decision relating to step two of a methodology in which he skipped step one. 

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The case is analogous to United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 

2004). There, an alien challenged a removal order in which the IJ said he was ineligible 

for relief because his prior conviction under a statute was for an aggravated felony. Id. at 

1092-93. The IJ expressly relied on a BIA decision stating that a conviction under the 

statute was an aggravated felony.2

 Id. at 1093. In reviewing the IJ’s conclusion, the 

Ninth Circuit used the Taylor methodology. Id. at 1099. First, the court held that the 

statute was divisible in that it extended to conduct constituting an aggravated felony as 

well as conduct falling short of that label. See id. at 1100-02. Next, the court held that 

the pertinent documents in the conviction record did not specify which of these two 

categories of conduct the alien had committed. Id. at 1103. Accordingly, the court 

concluded that the IJ “improperly characterized” the alien’s conviction as an aggravated 

felony and “erroneously informed him that he was ineligible” for relief. Id.

Two lessons can be drawn from Pallares-Galan. First, an IJ’s reliance on general 

language in a facially applicable BIA decision does not prove he correctly applied 

precedent. See United States v. Vidal-Mendoza, 705 F.3d 1012, 1017 (9th Cir. 2013) 

(characterizing Pallares-Galan as instance of “IJ’s misapplication of existing 

precedent”). Second, an IJ’s misapplication of precedent does not, by itself, violate due 

process. The misapplication must result in an erroneous conclusion about the alien’s 

apparent eligibility for relief. See id. (characterizing Pallares-Galan as case where “IJ’s 

misapplication of existing precedent resulted in his failure to inform the defendant of his 

‘apparent eligibility’ for relief”). Thus, the Court turns to consider whether the IJ’s 

conclusion about Felix-Coronado’s eligibility for relief was erroneous. 

 2

 Admittedly, that BIA decision was “not a precedent decision” according to the 

IJ. Id. at 1093. 

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2. Whether the IJ Erroneously Concluded Felix-Coronado Was 

Ineligible for Relief 

Had the IJ correctly applied existing precedent, he would have first determined 

whether Arizona’s Aggravated DUI statute is divisible into multiple offenses. On this 

matter the Court has the benefit of hindsight. As the Ninth Circuit explained in 

Hernandez-Martinez, the statute is divisible into the offenses of “driving” under the 

influence without a license and having “actual physical control” of a vehicle under the 

influence without a license. 329 F.3d at 1118. Thus, as the Ninth Circuit noted, the 

statute’s range extends beyond crimes involving moral turpitude. Id.

The next step is to determine, as the court did in Pallares-Galan, whether the 

pertinent documents in Felix-Coronado’s conviction record specify which of these 

offenses he had committed. Only a narrow set of documents may be considered in this 

determination. In Re Sweetser, 22 I. & N. Dec. 709, 714 (BIA 1999) (“This approach 

does not involve an inquiry into facts previously presented and tried. Instead the focus is 

on the elements required to sustain the conviction.”); see also Matter of Short, 20 I. & N. 

Dec. 136, 137-38 (BIA 1989) (defining “record of conviction” as the indictment, plea, 

verdict, and sentence). 

Based on the documents submitted by the parties, Felix-Coronado’s conviction 

record does not specify whether he was convicted under the “driving” prong or the 

“actual physical control” prong. The only document with possibly relevant information 

is the Presentence Report, whose description of a “two-car accident” indicates FelixCoronado was in fact “driving” at the time of the offense. (Doc. 26-2 at 13.) But this 

description cannot be considered in determining which prong Felix-Coronado was 

convicted under, because there is no indication this description played a role in the 

decision to convict. See Matter of Teixeira, 21 I. & N. Dec. 316, 319 (BIA 1996) 

(barring consideration of police report because, although it may indicate what the 

defendant did “in actual fact,” it does not indicate what the defendant “was convicted 

of”); accord Pallares-Galan, 359 F.3d at 1103 n.9 (noting it is “well established” that 

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courts “may not consider the factual description in a presentence report in determining 

whether a defendant pled guilty to the elements of an aggravated felony”). 

Because Felix-Coronado’s conviction record does not specify the statutory prong 

under which he was convicted, the government “has failed to meet its burden” on this 

matter. Pallares-Galan, 359 F.3d at 1103.3

 Thus, the IJ “improperly characterized” 

Felix-Coronado’s conviction as a crime involving moral turpitude and, as a result, 

“erroneously informed him that he was ineligible to receive discretionary relief.” Id. 

This error violated Felix-Coronado’s right to due process. 

B. Prejudice 

In addition to showing a due process violation, Felix-Coronado must establish that 

he suffered prejudice as a result. United States v. Rojas-Pedroza, 716 F.3d 1253, 1263 

(9th Cir. 2013). To do this, he must make a “plausible” showing that, absent the due 

process violation, the IJ would have granted the discretionary relief he requested. See id. 

Determining whether Felix-Coronado has made this showing is a two-step process. First, 

the Court must identify factors relevant to the IJ’s exercise of discretion as to the relief 

being sought. Id. Second, the Court must determine whether, in light of these factors and 

the unique circumstances of Felix-Coronado’s case, it is plausible that the IJ would have 

exercised discretion in his favor. Id.

Felix-Coronado requested discretionary relief in the form of suspension of 

deportation or voluntary departure. In exercising discretion as to the request for 

voluntary departure, the IJ would have considered favorable and unfavorable factors. Id.

at 1264. Favorable factors might include the length of residence in the United States, any 

 3

 The government argues Felix-Coronado had the burden of disproving to the IJ 

that his conviction involved moral turpitude. Whatever the merit of this argument in 

other procedural contexts, Pallares-Galan foreclosed this argument here by stating, in a 

case where a defendant charged with illegal reentry was collaterally attacking an 

underlying removal order, that the burden of proving “the specific conduct of which the 

defendant was convicted” prior to the removal order “rests squarely with the 

government.” Id. at 1099. 

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family ties to the United States, and any humanitarian needs. Id. at 1265. Unfavorable 

factors might include the nature and circumstances of the underlying deportation ground 

at issue, any additional violations of immigration laws, the seriousness and recency of 

any criminal record, and any other evidence of bad character. Id.

In Felix-Coronado’s case, positive factors were strong. Felix-Coronado had lived 

in the United States for thirteen years, had several family members lawfully present in the 

United States, and had maintained continuous employment in the United States. The 

government does not dispute the existence of these factors, but instead points to negative 

factors: Felix-Coronado was not married, had multiple DUI convictions, and had 

consumed alcohol on a regular basis. Despite these negative factors, and in light of the 

strong positive factors and the unique circumstances of Felix-Coronado’s case, it is 

plausible that the IJ would have granted relief in the form of voluntary departure. 

Therefore Felix-Coronado suffered prejudice as a result of the due process 

violation. The Court need not decide whether the IJ might have granted suspension of 

deportation, the other form of relief Felix-Coronado sought. 

III. CONCLUSION 

In the 2001 removal order, the IJ misapplied existing precedent and erroneously 

told Felix-Coronado he was ineligible for relief from removal. This error violated due 

process and caused Felix-Coronado to suffer prejudice. As a result, the removal 

proceedings were fundamentally unfair and cannot now be used as a predicate element in 

Felix-Coronado’s indictment for illegal reentry under 8 U.S.C. § 1326(a). Therefore the 

indictment will be dismissed. 

In the absence of an indictment, Felix-Coronado will be released from custody 

without prejudice to a possible immigration detainer. Thus, his motion to revoke the 

December 4, 2015 detention order and his motion for an order setting conditions of his 

release will be denied as moot. 

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IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss Indictment 

(Doc. 21) is granted. 

IT IS FURTHER ORDERED that Defendant be released from custody without 

prejudice to an immigration detainer if the government seeks it. 

IT IS FURTHER ORDERED that Defendant’s Motion for Revocation of the 

December 4, 2015 Order of Detention (Doc. 12) and Defendant’s Motion for Order 

Setting Conditions of Release (Doc. 30) are denied as moot. 

DATED this 16th day of February, 2016. 

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