                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           DEC 08 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50290

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00032-DDP-1

 v.
                                                 MEMORANDUM*
CESAR PULIDO-ESTRADA, AKA Cesar
Ortiz, AKA Cesar Pulido, AKA Cesar
Villa,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                      Argued and Submitted August 26, 2014
                       Submission Vacated August 29, 2014
                          Resubmitted August 18, 2015
                              Pasadena, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges and GLEASON,***
District Judge.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       ***
             The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
      Cesar Pulido-Estrada appeals the district court’s denial of his motion to

dismiss his indictment for illegal reentry. On appeal, the government has

abandoned its arguments regarding Pulido-Estrada’s conviction for grand theft auto

under Cal. Penal Code § 487(d), conceding that such conviction does not qualify as

an “aggravated felony” under 8 U.S.C. § 1101(a)(43). We therefore consider only

whether the district court’s order can be affirmed under the government’s argument

regarding Pulido-Estrada’s conviction for taking a vehicle without consent under

Cal. Veh. Code § 10851(a).

      In order to prevail on his collateral attack to his order of removal, Pulido-

Estrada must show that: (1) he exhausted his administrative remedies; (2) the

deportation 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. See 8 U.S.C. § 1326(d); United States v. Vidal-Mendoza,

705 F.3d 1012, 1015 (9th Cir. 2013).

                                          I

      The first two elements are no longer seriously contested on appeal.

Although Pulido-Estrada elected not to appeal his removal order to the Board of

Immigration Appeals, he did so only after the immigration judge (“IJ”) told him

that there was no relief available to him. The IJ based this conclusion on the


                                          2
theory that Pulido-Estrada’s section 487(d) conviction qualified as an aggravated

felony, thus rendering him ineligible for certain forms of relief. The government

now concedes that the section 487(d) conviction was not an aggravated felony, but

it has advanced no alternative argument for why—on the basis of the record before

him—the IJ was still correct to state that Pulido-Estrada was ineligible for relief

from removal.1 We must therefore conclude that, without the section 487(d)

conviction, the IJ’s statement that Pulido-Estrada was not eligible for relief was

made in error. In light of this error, Pulido-Estrada’s waiver of his right to appeal

was not sufficiently “considered and intelligent,” which thus excuses his failure to

exhaust and satisfies the first two elements of his § 1326(d) collateral attack. See

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

                                          II

      Under the third element, Pulido-Estrada must show that defects in the

removal proceedings violated his due process rights and that he suffered prejudice

as a result of such defects. See id. The government argues that he cannot show

prejudice from any error in the analysis of his section 487(d) conviction, because




      1
       Instead, the government has limited its argument to whether Pulido-Estrada
can demonstrate prejudice in light of his section 10851(a) conviction, discussed
infra.

                                           3
his additional section 10851(a) conviction also qualifies as an aggravated felony,

thus rendering him ineligible for relief from removal.

      Although a conviction that was not alleged in the Notice to Appear may be

used to deny an alien discretionary relief from removal, it may not serve as the

basis for the underlying order of removal itself. See United States v. Gonzalez-

Valerio, 342 F.3d 1051, 1054–56 (9th Cir. 2003); Chowdhury v. INS, 249 F.3d

970, 974–75 (9th Cir. 2001). The only basis for removal alleged in Pulido-

Estrada’s Notice to Appear was that his section 487(d) conviction qualified as an

aggravated felony. Because the government has abandoned that argument, Pulido-

Estrada was not removable as charged. It was prejudicial for him to be removed in

such circumstances. See United States v. Aguilera-Rios, 769 F.3d 626, 637 (9th

Cir. 2014); United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006).2

      REVERSED.3




      2
         We do not address Pulido-Estrada’s arguments regarding his eligibility for
relief under INA § 212(h).
      3
       The government’s Motion for Judicial Notice, filed with this court on
August 21, 2014, is denied.

                                          4
