                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                  No. 14-50142
                Plaintiff-Appellee,
                                              D.C. No.
                 v.                        2:12-cr-00843-
                                              DMG-1
RAUL GUZMAN-IBAREZ, AKA Raul
Guzman, Raul Ibarez Guzman, Jr.,
Raul Ibarez, Raul Guzman Ibarez,             OPINION
Jr., Little Playboy, Manuel Torres,
Miguel Duran Torres,
                 Defendant-Appellant.


      Appeal from the United States District Court
         for the Central District of California
        Dolly M. Gee, District Judge, Presiding

                Argued and Submitted
          June 2, 2015—Pasadena, California

                      Filed July 6, 2015

  Before: Ferdinand F. Fernandez, Raymond C. Fisher,
           and Carlos T. Bea, Circuit Judges.

              Opinion by Judge Fernandez;
 Partial Concurrence and Partial Dissent by Judge Fisher
2             UNITED STATES V. GUZMAN-IBAREZ

                           SUMMARY*


                          Criminal Law

    The panel vacated a conviction and sentence for illegal
reentry after deportation or removal in violation of 18 U.S.C.
§ 1326 and remanded for the district court to consider
whether the defendant was prejudiced by the deprivation of
his due process rights in his removal proceeding.

    The panel rejected the contention that the defendant’s due
process rights were violated because his first degree robbery
conviction did not qualify as an “aggravated felony” when his
immigration proceedings began in 1995, and therefore the
immigration judge (“IJ”) erred in finding him deportable
based on that offense. The panel held that the new definition
set forth in § 321(a) of the Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”), making theft
offenses aggravated felonies so long as the defendant was
sentenced to one year or more in prison, rather than five years
or more, applied when the IJ acted in 1999 by entering a
removal order.

    The panel held that the IJ erred when she failed to advise
the defendant of the possibility of relief under 8 U.S.C.
§ 1182(c). The panel explained that § 440(d) of the
Antiterrorism and Effective Death Penalty Act was not
effective as to proceedings, such as the defendant’s, that had
commenced prior to the date of the Act’s enactment. In
addition, the provision of IIRIRA that eliminated relief under

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            UNITED STATES V. GUZMAN-IBAREZ                   3

§ 1182(c) did not apply to aliens, like the defendant, whose
proceedings had commenced before the enactment of IIRIRA.
The panel vacated the defendant’s conviction and sentence
and remanded for the district court to consider whether he
was prejudiced by the deprivation of his due process rights in
his 1999 removal proceeding. The panel stated that if the
defendant was not prejudiced, then the district court could
reinstate his conviction and sentence. If the defendant was
prejudiced, then the district court must dismiss the
indictment.

    The panel held that the IJ did not err or deprive the
defendant of due process when she failed to advise him of the
possibility of relief under 8 U.S.C. § 1182(h).

    Judge Fisher concurred in Parts A and B of the opinion.
Dissenting from Part C, he wrote that in addition to informing
the defendant about his eligibility for relief under § 1182(c),
the IJ should have advised him of his apparent eligibility for
§ 1182(h) relief.


                         COUNSEL

James H. Locklin (argued), Deputy Federal Public Defender;
Hilary L. Potashner, Federal Public Defender, Federal Public
Defender’s Office, Los Angeles, California, for Defendant-
Appellant.

Cassie D. Palmer (argued), Assistant United States
Attorney, General Crimes Section; Stephanie Yonekura,
Acting United States Attorney; Robert E. Dugdale, Assistant
United States Attorney, Chief, Criminal Division, Office of
4                 UNITED STATES V. GUZMAN-IBAREZ

the United States Attorney, Los Angeles, California, for
Plaintiff-Appellee.


                                 OPINION

FERNANDEZ, Circuit Judge:

    Raul Guzman-Ibarez appeals his conviction and sentence
for illegal reentry after deportation or removal. See 8 U.S.C.
§ 1326. Specifically, he asserts that his indictment should
have been dismissed by the district court because he was
denied due process at his deportation hearing on August 25,
1999, which precludes use of the deportation order in a
criminal proceeding. See id. § 1326(d). We vacate his
conviction and sentence and remand.

                             BACKGROUND

    Guzman was born in Mexico, but came to the United
States in 1979, when he was about six years old. He became
a Legal Permanent Resident (“LPR”) on July 13, 1989. He
was far from being a perfect peregrine; rather, he committed
numerous crimes and on December 21, 1995, a deportation
proceeding was initiated against him. Undeterred, he
committed a robbery in California, was convicted of first
degree robbery1 on February 14, 1997, and was sentenced to
four years’ imprisonment as a result. Because state criminal
proceedings necessitated a delay in the deportation
proceeding, it was administratively closed in 1997. Guzman
served his term, and the deportation proceeding was


    1
        See Cal. Penal Code §§ 211, 212.5(a).
             UNITED STATES V. GUZMAN-IBAREZ                       5

reopened. On August 12, 1999, the robbery conviction was
added to the charges supporting his deportation. On August
25, 1999, the immigration judge (IJ) found that he was
deportable as an alien convicted of an aggravated felony
(8 U.S.C. § 1227(a)(2)(A)(iii)) and a firearm offense
(8 U.S.C. § 1227(a)(2)(C)), and that he was ineligible for
discretionary relief based upon his robbery conviction.
Guzman waived his right to appeal. He was deported.2

    Guzman paid no more attention to the laws of the United
States than he paid to the laws of the State of California; he
reentered and was deported again in 2000, 2002, 2004 and
2010 based on the initial 1999 deportation. But ours is a
patient polity, and it was not until Guzman was found here in
July of 2012 that the current criminal proceeding was
commenced against him for violation of 8 U.S.C. § 1326(a).

    Guzman moved to dismiss the indictment on the basis that
his due process rights had been violated in the 1999
deportation proceeding because he had not been informed of
the availability of potential discretionary relief under the
provisions of 8 U.S.C. § 1182(c) (Immigration and
Nationality Act (“INA”) § 212(c)), and 8 U.S.C. § 1182(h)
(INA § 212(h)). The district court denied the motion, found
Guzman guilty of the offense charged, and sentenced him to
imprisonment for 33 months. This appeal followed.

     JURISDICTION AND STANDARDS OF REVIEW

    The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

  2
    We recognize that removal is the term used currently, but we use
deportation throughout to avoid any undue complexity or confusion.
6                    UNITED STATES V. GUZMAN-IBAREZ

    We review de novo a collateral attack on a prior
deportation order in a prosecution under 8 U.S.C. § 1326.
See United States v. Vidal-Mendoza, 705 F.3d 1012, 1014
(9th Cir. 2013). We may affirm the district court’s denial of
a motion to dismiss an indictment on any basis supported by
the record. See United States v. Davis, 336 F.3d 920, 922
(9th Cir. 2003).

                                DISCUSSION

    The parties agree that if neither the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214 (“AEDPA”) nor the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009–546 (“IIRIRA”) had been
enacted, Guzman would not have stood convicted of an
aggravated felony under the law as it previously existed3 and
would have been entitled to consideration for waiver of
deportation.4

    Thus, as is true of the situation of many LPRs, timing in
this case is everything. To briefly recapitulate the timeline
here: deportation proceedings commenced December 21,
1995; the AEDPA was enacted April 24, 1996;5 IIRIRA was
enacted September 30, 1996;6 Guzman was convicted and
sentenced for first degree robbery February 14, 1997;


    3
        See 8 U.S.C. § 1101(a)(43)(G) (1995).
    4
        See 8 U.S.C. § 1182(c), (h) (1995).
    5
        We will say more about effective dates hereafter.
    6
        Supra n.5.
            UNITED STATES V. GUZMAN-IBAREZ                     7

Guzman was ordered deported August 25, 1999. Guzman’s
motion to dismiss the indictment depends upon his ability to
challenge the validity of his deportation order. That is
constrained by the provisions of 8 U.S.C. § 1326(d).

    Essentially, when the IJ violates the “duty under [8
C.F.R.] § 1240.11(a)(2) to inform the alien of his or her
apparent eligibility to apply for certain discretionary relief [,
that] may be the centerpiece of a collateral challenge under
§ 1326(d).” Vidal-Mendoza, 705 F.3d at 1016 (internal
quotation marks omitted); see also 8 C.F.R. § 240.11(a)(2)
(1999). More specifically, in order to challenge a removal
order in a proceeding under § 1326, a defendant must first
demonstrate that he “exhausted any administrative remedies
that may have been available to seek relief against the order.”
Id. § 1326(d)(1). Where, as here, a defendant contends that
“the IJ has failed to provide information about apparent
eligibility for relief, we excuse the alien from demonstrating
that the alien exhausted any administrative remedies that may
have been available.” Vidal-Mendoza, 705 F.3d at 1015
(internal quotation marks omitted). Next, a defendant must
demonstrate that the deportation proceedings in which the
order was issued improperly “‘deprived [him] of the
opportunity for judicial review.’” Id.; see also 8 U.S.C.
§ 1326(d)(2). An IJ’s failure to inform an alien regarding
apparent eligibility for relief deprives the alien of the
opportunity for judicial review. See Vidal-Mendoza,
705 F.3d at 1015. Finally, a defendant must demonstrate that
“the entry of the order was fundamentally unfair.” 8 U.S.C.
§ 1326(d)(3).         An underlying deportation order is
fundamentally unfair if: (1) the defendant’s “due process
rights were violated by defects in his underlying deportation
proceeding, and (2) he suffered prejudice as a result of the
8              UNITED STATES V. GUZMAN-IBAREZ

defects.” See Vidal-Mendoza, 705 F.3d at 1015–16 (internal
quotation marks omitted).

    Guzman asserts that the IJ did, indeed, fail to properly
advise him regarding his eligibility for relief. He also argues
that the IJ’s basis for finding him deportable was
fundamentally flawed.

        (A)   Aggravated Felony

    Guzman asserts for the first time on appeal that his due
process rights were violated because his first degree robbery
conviction did not qualify as an “aggravated felony” when his
immigration proceedings began in 1995, and therefore the IJ
erred in finding him deportable pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii) based on that offense.7 We disagree.

    Because he did not raise that specific issue before trial or
show good cause for not having done so, we would normally
treat the issue as waived. See Fed. R. Crim. P. 12(b)(3),
(c)(3); United States v. Anderson, 472 F.3d 662, 669–70 (9th
Cir. 2006); United States v. Murrillo, 288 F.3d 1126, 1135
(9th Cir. 2002). However, because the issue is basically a
pure issue of law and, more importantly, because we must
consider the aggravated felony question in any event, we will
review the issue. See United States v. Flores-Montano,
424 F.3d 1044, 1047 (9th Cir. 2005) (per curiam).




    7
    The parties agree that Guzman was not deportable on the basis of the
concealed weapon offense. Thus, we do not further consider that issue at
this time, except to note that upon remand the district court should not rely
upon that offense either.
              UNITED STATES V. GUZMAN-IBAREZ                         9

     When the proceeding against Guzman commenced in
1995, a theft offense, like robbery, was an aggravated felony
if the term of imprisonment imposed upon the defendant was
at least five years. See 8 U.S.C. § 1101(a)(43)(G) (1995).
Under that provision, his robbery conviction would not
constitute an aggravated felony because he was sentenced to
a term of four years. However, before he pled guilty to the
robbery offense, IIRIRA § 321(a) made theft offenses
aggravated felonies so long as the defendant was sentenced
to one year or more in prison, rather than five years or more.
See 8 U.S.C. § 1101(a)(43)(G) (1996). That new definition
applies to convictions “before, on, or after the date of
enactment.” IIRIRA § 321(b). Moreover, as we have
previously determined, the new definition applies when an IJ
takes action “on or after the date of the enactment.” Id. at (c);
see also Park v. INS, 252 F.3d 1018, 1025 (9th Cir. 2001)
overruled on other grounds by Fernandez-Ruiz v. Gonzales,
466 F.3d 1121, 1127 (9th Cir. 2006) (en banc); Ortiz v. INS,
179 F.3d 1148, 1155–56 (9th Cir. 1999); Valderrama-
Fonseca v. INS, 116 F.3d 853, 854–56 (9th Cir. 1997).8 As
we have said: “‘actions taken’ refers to orders and decisions
issued against an alien by the Attorney General acting
through the BIA or Immigration Judge. This makes logical
and practical sense, as ‘actions taken’ is easily understood to
encompass things done by an agency to an alien.”
Valderrama-Fonseca, 116 F.3d at 856.




  8
     Guzman asks that we overrule our prior cases which explain the
meaning of “actions taken.” See Saqr v. Holder, 580 F.3d 414, 422 (6th
Cir. 2009) (holding that the phrase refers to the commencement of a
proceeding only). That, of course, we cannot do. See Avagyan v. Holder,
646 F.3d 672, 677 (9th Cir. 2011).
10            UNITED STATES V. GUZMAN-IBAREZ

    Therefore, by the time the IJ acted on August 25, 1999, by
entering a removal order, she correctly decided that
Guzman’s robbery conviction was an aggravated felony
because the term of imprisonment for his offense exceeded
one year.

      (B)    INA § 212(c) Relief

   Guzman next argues that the IJ erred, and violated his due
process rights, when she failed to advise him of the
possibility of relief under 8 U.S.C. § 1182(c) (INA § 212(c)).
We agree that the IJ erred. See United States v. Muro-Inclan,
249 F.3d 1180, 1183–84 (9th Cir. 2001).

    When the proceedings against Guzman commenced,
consideration for waiver of deportation pursuant to 8 U.S.C.
§ 1182(c) (1995) (INA § 212(c)) was available.9 However,
the AEDPA was enacted a few months later and under its
provisions § 1182(c) was amended to entirely eliminate the
phrase “served for such felony . . . a term of imprisonment of
at least 5 years.” AEDPA § 440(d). However, as we have
previously held, the § 440(d) provision was not effective as
to proceedings which had commenced prior to the date of its
enactment. See Magana-Pizano v. INS, 200 F.3d 603, 611
(9th Cir. 1999). In other words, when Guzman pled guilty to




  9
    The section provided for discretionary relief, but excluded relief for
“an alien who has been convicted of one or more aggravated felonies and
has served for such felony or felonies a term of imprisonment of at least
5 years.”
               UNITED STATES V. GUZMAN-IBAREZ                            11

first degree robbery, the protections previously offered by
§ 1182(c) remained in full force and effect.10

    By the time Guzman pled guilty, IIRIRA had also been
enacted and it eliminated relief under § 1182(c) (INA
§ 212(c)). IIRIRA § 304(b). However, that provision did not
apply to aliens, like Guzman, whose proceedings had
commenced before the enactment of IIRIRA. See Pascua v.
Holder, 641 F.3d 316, 321 (9th Cir. 2011).

    In other words, at the time Guzman pled guilty, for him
the § 1182(c) relief provision was “in full bloom, [and] the
amending and repealing statutes did not retroactively take
away that provision.” United States v. Leon-Paz, 340 F.3d
1003, 1006 (9th Cir. 2003).

    In short, the IJ erred when she failed to tell Guzman of the
possibility that § 1182(c) (INA § 212(c)) relief was available;
that violated his due process rights. Moreover, “the district
court erred when it held to the contrary.” Leon-Paz, 340 F.3d
at 1007.


 10
     We recognize that at that time and at the time the IJ acted, the Board
of Immigration Appeals (BIA) had determined that the provisions of
§ 440(d) did apply to cases like Guzman’s. See In re Soriano, 21 I. & N.
Dec. 516, 519 (B.I.A. 1996) overruled by Magana-Pizano, 200 F.3d at
611 n.11. Nevertheless, the IJ knew, or should have known, that we had
not yet addressed the retroactivity question and, therefore, that the BIA’s
ruling did not obviate her duty to inform Guzman of the § 1182(c)
possibility. See Vidal-Mendoza, 705 F.3d at 1017–18, 1018 n.6.
(“Because only the federal courts, and not the BIA, have the authority to
determine a ‘question of statutory retroactivity,’ the IJ’s duty to inform an
alien of a ‘reasonable possibility’ of the continued availability of § 212(c)
relief was not eliminated by the BIA’s conclusion on this issue.”
(citations omitted)).
12             UNITED STATES V. GUZMAN-IBAREZ

    That leaves the issue of prejudice to be resolved. The
issue was not addressed by the district court, but should now
be considered by it. See id. As we declared in Leon-Paz, id.:

           We, therefore, vacate [Guzman’s] conviction
           and sentence, and remand the case to the
           district court so that it can consider whether
           [Guzman] was prejudiced by the deprivation
           of his due process rights in his [1999] removal
           proceeding. If he was not prejudiced, the
           district court may reinstate the conviction and
           sentence. If he was prejudiced, the district
           court must dismiss the indictment.

     (C)      INA § 212(h) Relief

    Guzman finally argues that the IJ erred, and violated his
due process rights, when she failed to advise him of the
possibility of relief under 8 U.S.C. § 1182(h) (INA
§ 212(h)).11 We do not agree.

    Because he had committed an aggravated felony, that
would preclude him from relief if he was an LPR who had
been “lawfully admitted for permanent residence.” 8 U.S.C.
§ 1182(h) (1999) (INA § 212(h)). Guzman was not admitted


   11
      The section as modified by IIRIRA § 348 provides for waiver of
inadmissibility for aliens whose denial of admission “would result in
extreme hardship to [a] United States citizen or lawfully resident spouse,
parent, son or daughter of such alien.” § 1182(h)(1)(B). But: “No waiver
shall be granted under this subsection in the case of an alien who has
previously been admitted to the United States as an alien lawfully
admitted for permanent residence if . . . since the date of such admission
the alien has been convicted of an aggravated felony.” § 1182(h) (closing
paragraph).
              UNITED STATES V. GUZMAN-IBAREZ                          13

as an LPR; he became one some ten years after he entered the
United States. Nevertheless, commencing before the IJ
decided Guzman’s case12 and for over a decade thereafter, the
BIA interpreted that phrase to include those who were
accorded LPR status after their admission.13 According to
that interpretation, Guzman would not be eligible for
§ 1182(h) consideration. But in 2010, we decided that
“admitted” meant what that word normally means, that is, at
entry only; it did not include those who later become LPRs on
one basis or another. See Negrete-Ramirez v. Holder,
741 F.3d 1047, 1051 (9th Cir. 2014); see also Hing Sum v.
Holder, 602 F.3d 1092, 1096 (9th Cir. 2010). We do not
question that decision14 and it certainly would entitle Guzman
to § 1182(h) consideration if he were before the IJ at this
time.



  12
     See In re Rosas-Ramirez, 22 I. & N. Dec. 616, 618–19 (B.I.A. 1999)
(interpreting the phrase as used in INA § 237(a)(2)(A)(iii)); see also
8 U.S.C. § 1101(a)(20).
  13
     See In re Koljenovic, 25 I. & N. Dec. 219, 220–21 (B.I.A. 2010)
(interpreting the phrase in INA § 212(h) specifically), overruled by In re
J-H-J-, 26 I. & N. Dec. 563, 564–65 (BIA 2015) (withdrawing from
decision in light of “overwhelming circuit court authority”).
  14
      Interestingly enough, we had previously interpreted the phrase to
encompass those who were lawfully admitted at any time; not just at entry.
See Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1015 (9th Cir. 2006);
Shivaraman v. Ashcroft, 360 F.3d 1142, 1147 (9th Cir. 2004);
Ocampo-Duran v. Ashcroft, 254 F.3d 1133, 1134–35 (9th Cir. 2001).
Like Rosas-Ramirez, those cases were not considering § 212(h) as such.
We mention them here solely for the purpose of pointing out that the
restriction which we later discovered in the language of § 212(h), which
limited that section to those who were admitted as LPRs at the border, was
far from obvious ten years earlier.
14           UNITED STATES V. GUZMAN-IBAREZ

    However, what we are concerned with here is whether the
IJ had to predict that possibility when she advised Guzman of
his rights in 1999. We think not. As we have previously
declared, with narrow exceptions,15 “an IJ’s duty is limited to
informing an alien of a reasonable possibility that the alien is
eligible for relief at the time of the hearing.” United States v.
Lopez-Velasquez, 629 F.3d 894, 895 (9th Cir. 2010) (en
banc). The change wrought by our decision was one of
substantive law about which clairvoyance could not have
been expected of the IJ. See Vidal-Mendoza, 705 F.3d at
1017; Lopez-Velasquez, 629 F.3d at 900. Thus, Guzman’s
due process rights were not violated when the IJ failed to
advise him of possible relief under § 212(h). The IJ could not
have been expected to know that relief might be possible
under the circumstances.

                         CONCLUSION

    While we do not intend to vilipend legislative efforts in
this area of the law, we must say that, as is all too often the
case, it has taken a good deal of concentrated praxis to wend
our way through the maze of overlapping statutory commands
that affect the seemingly simple question of whether an IJ
was a seer who could discover what Guzman had to be told
at the time of his hearing before her. We have determined
that the IJ correctly decided that Guzman’s robbery
conviction was an aggravated felony, and did not err when
she failed to inform him that he might be entitled to relief
under 8 U.S.C. § 1182(h) (INA § 212(h)). However, she did
err when she failed to inform him that he might be entitled to
relief under 8 U.S.C. § 1182(c) (INA § 212(c)). Thus,

   15
      See discussion in part (B) of this opinion regarding the narrow
exception for retroactivity decisions.
            UNITED STATES V. GUZMAN-IBAREZ                 15

because he was denied due process in that respect, if he was
also prejudiced as a result, the indictment for violation of
8 U.S.C. § 1326 must be dismissed. Therefore, we vacate his
conviction and sentence and remand to the district court for
further proceedings.

   VACATED and REMANDED.



FISHER, Circuit Judge, concurring in part and dissenting in
part:

    I concur fully in Parts A and B of the opinion, but I
respectfully disagree with the analysis in Part C. In addition
to informing Guzman about his eligibility for § 212(c) relief,
the IJ should have advised him he was eligible for § 212(h)
relief.

    Section 212(h) prohibits relief only for “an alien who has
previously been admitted to the United States as an alien
lawfully admitted for permanent residence if . . . since the
date of such admission the alien has been convicted of an
aggravated felony.” 8 U.S.C. § 1182(h) (emphasis added).
Relying on In re Rosas-Ramirez, 22 I. & N. Dec. 616, 618–19
(BIA 1999), the opinion concludes the IJ had no obligation to
inform Guzman of his eligibility for § 212(h) relief because
the term “admitted” includes adjustments of status.

    Rosas is inapposite. There, the BIA analyzed the
meaning of “admission” in the specific statutory context of
INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), which
provides that “[a]ny alien who is convicted of an aggravated
felony at any time after admission is deportable.” 22 I. & N.
16           UNITED STATES V. GUZMAN-IBAREZ

at 617 (emphasis added). The BIA concluded “the reference
in section 237(a)(2)(A)(iii) of the Act to ‘after admission’
includes both those aliens who are ‘admitted’ at the time of
entry . . . as well as those who are ‘lawfully admitted for
permanent residence.’” Id. at 623. Under this definition, the
BIA held “the respondent’s adjustment of status . . .
constituted an ‘admission’ to the United States as that term is
used in section 237(a)(2)(A)(iii).” Id. (emphasis added).
Immediately after this sentence, the BIA included a footnote
in which it stated: “We do not here attempt to resolve the
meaning of ‘admission’ in other contexts.” Id. at 623 n.5.1

    Unlike the provision interpreted in Rosas, § 212(h)
contains both the terms “previously been admitted” and
“lawfully admitted for permanent residence.” Under the
INA’s own definitions – of which the IJ presiding over
Guzman’s hearing would have undoubtedly been aware –
these terms have different meanings. “Admitted” means “the
lawful entry of an alien into the United States after inspection
and authorization,” see 8 U.S.C. § 1101(a)(13)(A), whereas
“lawfully been admitted for permanent residence” means “the
status of having been lawfully accorded the privilege of
residing permanently in the United States,” see 8 U.S.C.
§ 1101(a)(20). If an adjustment of status could constitute an
“admission” under § 212(h), as the opinion concludes, the
phrase “previously been admitted” in § 212(h) would be
superfluous. The provision could simply have prohibited
relief for “an alien lawfully admitted for permanent residence
if, since the date of such admission, the alien has been


  1
    Only in 2010 did the BIA explicitly extend Rosas to the § 212(h)
context. See Matter of Koljenovic, 25 I. & N. 25 I. & N. Dec. 219, 222
(BIA 2010), withdrawn by Matter of J-H-J-, 26 I. & N. Dec. 563 (BIA
2015).
            UNITED STATES V. GUZMAN-IBAREZ                  17

convicted of an aggravated felony.” But § 212(h) refers to
“an alien who has previously been admitted to the United
States as an alien lawfully admitted for permanent residence,”
meaning a noncitizen who was granted lawful entry into the
United States as a lawful permanent resident. Under this
reading, Guzman could not have fallen within the purview of
§ 212(h)’s prohibition because he had not entered the United
States as an LPR.

    Given the significant difference in the statutory provision
interpreted in Rosas and the one at issue here, the IJ had a
duty to inform Guzman of his apparent eligibility for § 212(h)
relief under the INA’s own definitions of the relevant terms.
“We have interpreted ‘apparent eligibility’ to mean ‘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 petitioner may be
eligible for relief.’” United States v. Lopez-Velasquez,
629 F.3d 894, 896 (9th Cir. 2010) (en banc) (emphasis
added). Here, the IJ was faced with a situation in which the
INA’s own definitions of the relevant terms compelled the
conclusion that Guzman remained eligible for 212(h) relief,
whereas the interpretation of “admission” in Rosas merely
suggested Guzman might not be eligible, if the BIA chose to
extend that interpretation to the context of 212(h), which it
had not done.

    The opinion relies on Lopez-Velasquez and Vidal-
Mendoza for the proposition that the IJ could not have been
expected to inform Guzman of his eligibility for § 212(h)
relief. But in those cases, our ex post interpretation of the
relevant statutory term upended the definition that governed
at the time of the hearing. For example, in United States v.
Vidal-Mendoza, 705 F.3d 1012 (9th Cir. 2013), the petitioner
18          UNITED STATES V. GUZMAN-IBAREZ

argued his conviction for third-degree rape did not constitute
“sexual abuse of a minor” under an en banc decision
postdating his removal order. Id. at 1019. We rejected the
petitioner’s argument, concluding the decision “deviat[ed]
from longstanding Ninth Circuit and BIA precedent,” and
therefore the IJ could not have been expected to advise the
petitioner about it. See id. at 1020 (internal quotation marks
omitted). Similarly, in Lopez-Velasquez, 629 F.3d at 894, we
concluded the definition of “domicile” in a decision
postdating the petitioner’s removal was a “deviation” from
established precedent, and therefore the IJ did not erroneously
advise the petitioner he was ineligible for certain relief. Id.
at 898.

    In Vidal-Mendoza and Lopez-Velasquez, the IJ could not
have been reasonably expected to inform the petitioners they
were eligible for such relief because they were
unquestionably ineligible under governing law at the time of
their proceedings. Here, by contrast, Rosas’ interpretation of
an entirely different statutory provision did not govern in the
context of § 212(h), and the definitions contained within the
INA required concluding that Guzman was eligible for such
relief. Under these circumstances, I cannot agree that “[t]he
IJ could not have been expected to know that relief might be
possible.”

    At the time of Guzman’s hearing, § 212(h) relief was
“reasonably possible” under the statutory definitions, and the
IJ should have so advised him. I would therefore hold the
removal order is constitutionally infirm both on § 212(c) and
§ 212(h) grounds.
