UNITED STATES V. MELENDEZ-CASTRO

9th Circuit

United States v. Melendez-Castro (9th Circuit, January 18, 2012)
Nelson, Gould, Ikuta (per curiam)

Summary: Faced with an illegal reentry charge, Melendez-Castro sought to collaterally attack his underlying deportation hearing. The Ninth Circuit held that his Fifth Amendment Due Process rights were violated during his deportation proceedings, because he was not meaningfully informed of his eligibility for voluntary departure. During the colloquy in removal proceedings, the IJ stated that Mr. Melendez-Castro may be eligible for voluntary departure but that the IJ would not grant VD in Mr. Melendez-Castro’s case because of his criminal record. The Ninth Circuit found that this exchange impermissibly discouraged Mr. Melendez-Castro from even applying for voluntary departure, where he could have presented equities in favor of a grant of VD. The Ninth Circuit further held that because of these defects in the removal proceedings, Mr. Melendez-Castro’s waiver of his right to appeal was not knowing or intelligent, and thus the bar to collateral attack under 8 U.S.C. § 1326(d) was not triggered. 

Read the opinion here.