                                                                            FILED
                           NOT FOR PUBLICATION                               FEB 05 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50477

              Plaintiff - Appellee,              D.C. No. 2:13-cr-00024-SJO-1

 v.
                                                 MEMORANDUM*
CARLOS FERNANDO FELIX
MORALES, AKA Carlos Fernando Felix,
AKA Carlos Fernando Felix-Morales,

              Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                      Argued and Submitted October 19, 2015
                               Pasadena, California

Before: PREGERSON and CALLAHAN, Circuit Judges and BASTIAN,** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Stanley Allen Bastian, District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
      Carlos Felix-Morales appeals the district court’s denial of his motion to

withdraw his guilty plea and to dismiss the Information charging him with

unlawful reentry under 8 U.S.C. § 1326. We reverse and remand.

      Felix-Morales was born in Mexico but came to the United States as a young

man to find work in 1985. He obtained temporary residency as a “Special

Agricultural Worker” in 1988 and subsequently adjusted his status to legal

permanent resident in 1990. He ran a trucking business with his brother, and

worked to support his wife, a legal permanent resident, and two children, both U.S.

citizens. Felix-Morales also has two brothers and a sister living in the U.S.

      Felix-Morales was deported in 1997 after being convicted for statutory rape

under California Penal Code § 261.5, which at that time was considered a

categorical aggravated felony. The conviction underlying his 1997 deportation is

no longer considered an aggravated felony. Estrada-Espinoza v. Mukasey, 546

F.3d 1147 (9th Cir. 2008) (en banc), overruling recognized by United States v.

Gomez, 757 F.3d 885, 901 (9th Cir. 2014). Although his conviction constituted an

aggravated felony at the time of his 1997 deportation, changes in statutory

interpretation apply retroactively for purposes of § 1326(d). United States v.

Aguilera-Rios, 769 F.3d 626, 631–33 (9th Cir. 2014). In March, 2013,

Felix-Morales pled guilty to unlawful reentry after his 1997 deportation. In this

appeal, Felix-Morales collaterally attacks his 1997 deportation under § 1326(d).
      We review a collateral attack on deportation de novo. Aguilera-Rios, 769

F.3d at 629. A collateral attack on deportation involves three elements: (1)

exhaustion of administrative remedies; (2) deprivation of judicial review; and (3) a

deportation that was fundamentally unfair. 8 U.S.C. § 1326(d); see also Aguilera-

Rios, 769 F.3d at 630. The government agrees that the 1997 deportation was

fundamentally unfair but argues that Felix-Morales has not established the first two

elements.

      Sections 1326(d)(1) and (d)(2) are satisfied in three overlapping categorical

circumstances: (1) when the IJ failed to inform defendant of his right to appeal his

deportation; (2) when the IJ failed to inform defendant of eligibility for a certain

kind of relief; or (3) when defendant’s waiver of a right to appeal was not

“considered and intelligent.” See United States v. Gonzalez-Villalobos, 724 F.3d

1125, 1130–31 (9th Cir. 2013).

      Felix-Morales was not deportable because of his 1997 conviction, which is

no longer considered an aggravated felony. Therefore, any waiver of his right to

appeal was necessarily based on incorrect information. As such, Felix-Morales’s

waiver should not have been treated as “considered and intelligent.” He has thus

satisfied §§ 1326(d)(1) and (d)(2). Id. Accordingly, we reverse the conviction and

vacate the district court’s order denying Felix-Morales’s motion to dismiss the
Information. And we remand for further proceedings consistent with the views

herein expressed.

      REVERSED and REMANDED.
                                                                              FILED
USA v Morales, No. 13-50477                                                    FEB 05 2016

                                                                         MOLLY C. DWYER, CLERK
Callahan, Circuit Judge, dissenting:                                         U.S. COURT OF APPEALS



      In 1997, an Immigration Judge (IJ) held that Felix-Morales was removable

as an aggravated felon due to his conviction under California Penal Code § 261.5

for the statutory rape of his fourteen-year old, learning-disabled niece. Sixteen

years later, Felix-Morales was charged with illegal reentry following deportation in

violation of 8 U.S.C. §§ 1326(a), (b)(2). This criminal appeal requires us to decide

whether Felix-Morales may collaterally attack the 1997 deportation order that is a

predicate of his conviction below for illegal reentry. The unambiguous answer set

down by Congress in 8 U.S.C. § 1326(d) is “no.” Felix-Morales may not

collaterally attack his removal order because he neither exhausted his

administrative remedies nor sought judicial review of the IJ’s conclusion that he

was a removable felon. The majority violates Congressional intent by reading two

of § 1326(d)’s three requirements for collaterally attacking a removal order out of

existence. The majority’s decision also conflicts with previous decisions by the

Supreme Court, our court, and other circuits. I thus respectfully dissent.

      1.     Under § 1326(d), an alien may not collaterally attack the validity of a

deportation order in a subsequent criminal proceedings “unless the alien

demonstrates”:

                                          1
      (1) the alien exhausted any administrative remedies that may have
      been available to seek relief against the order;
      (2) the deportation proceedings at which the order was issued
      improperly deprived the alien of the opportunity for judicial review;
      and
      (3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d). These three prerequisites for a collateral attack are

conjunctive, as the word “and” establishes. Accordingly, a deportation order may

be “fundamentally unfair” and thus satisfy § 1326(d)(3), but still be immune from

collateral attack where an alien did not satisfy (d)(1) and (d)(2) by exhausting

administrative remedies and seeking judicial review. Congress’s judgment in §

1326(d) that a “fundamentally unfair” deportation order is not subject to collateral

attack in these circumstances might seem inequitable. But § 1326(d)(1) and (d)(2)

serve the important interest of finality and ensure fairness by barring collateral

attacks only where aliens were previously provided the opportunity to seek

meaningful review. Felix-Morales has not questioned the statute’s

constitutionality.

      2.     Here, the government concedes that § 1326(d)(3) is met. The 1997

deportation order is now “fundamentally unfair” within the meaning of §

1326(d)(3) because, years after the IJ’s decision, this Court held that statutory rape

under California Penal Code § 261.5 is not an aggravated felony. Estrada-



                                           2
Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc). The issue then is

whether Felix-Morales has demonstrated that the first two requirements of §

1326(d) are met. He has not. Felix-Morales neither exhausted administrative

remedies nor sought judicial review of the IJ’s conclusion that he was an

aggravated felon. Rather, after being advised of his right to appeal, he waived his

right to appeal. It follows inexorably that Congress has barred his collateral attack

of the IJ’s conclusion that he was removable as an aggravated felon. See 8 U.S.C.

§ 1326(d).

      3.      The majority holds that Felix-Morales is excused from having to

meet § 1326(d)’s first two requirements because the IJ erroneously concluded that

statutory rape is an aggravated felony. According to the majority, the IJ’s legal

conclusion, which was consistent with then-controlling law, prevented Felix-

Morales from knowingly and intelligently waiving his right to appeal. The

majority relies on cases holding that where an IJ fails to notify an alien about his

right to appeal, any waiver or failure to exhaust and appeal cannot have been

intelligent and considered. See United States v. Gonzalez-Villalobos, 724 F.3d

1125, 1130-31(9th Cir. 2013) (collecting cases); see also United States v.

Ubaldo-Figueroa, 364 F.3d 1042, 1048–50 (9th Cir. 2004).

      The majority’s reliance on these cases is misplaced. It is true that we have

                                           3
read into § 1326(d)(1) and (d)(2) a requirement that any waiver or failure to

exhaust administrative and judicial remedies must be “considered and intelligent.”

See, e.g., United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004).

This makes sense in light of the requirement that there be “some meaningful

review of the administrative proceeding” in order for an agency’s determination to

support a later criminal conviction. See United States v. Mendoza-Lopez, 481 U.S.

828, 838 (1987). There can be no meaningful review of an adverse agency

decision where an alien was deprived of a meaningful opportunity to seek review.

      However, the IJ’s conclusion that statutory rape is an aggravated felony was

not comparable to an IJ’s failure to notify an alien about his right to appeal. The

IJ’s error in this case did not keep Felix-Morales in the dark, preventing him from

being able to pursue administrative and judicial remedies. Rather, it is undisputed

that Morales was informed that he could appeal. Pursuing administrative and

judicial remedies is precisely how mistakes of legal interpretation are corrected. In

fact, that is how we came to overturn our precedent and set aside the Bureau of

Immigration Appeal’s conclusion that a conviction under California Penal Code §

261.5 was an aggravated felony when we sat en banc in Estrada-Espinoza v.

Mukasey, 546 F.3d 1147 (9th Cir. 2008). Accepting the majority’s decision means

reading § 1326(d)(1) and (2) out of existence—any legal ruling in a deportation

                                          4
order that is contrary to intervening higher authority could be collaterally attacked

in a subsequent criminal proceeding, regardless of whether the alien exhausted

administrative remedies or sought judicial review.

      4.     In addition to violating Congressional intent, the majority’s decision

is inconsistent with our precedent. For example, in deciding a petition for habeas

corpus, we held that an alien who unlawfully reentered the United States in

violation of § 1326 was not deprived of meaningful review “at the time of the IJ’s

original ruling because the law at the time was unfavorable to him.”

Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1173 (9th Cir. 2001). We

reasoned that the alien “had the right to appeal his removal to the BIA and, if

unsuccessful there, to this court, yet he voluntarily waived that right.” Id.

Similarly, in United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1126 (9th Cir.

2013), we held that while an alien had exhausted his administrative remedies, he

could not collaterally attack the validity of his deportation order because he had not

demonstrated an “error or obstacle related to his deportation proceedings

improperly deprived him of the opportunity for judicial review, as required by 8

U.S.C. § 1326(d)(2).”

      The majority’s decision is also inconsistent with the decisions of other

circuits. In United States v. Rodriguez, 420 F.3d 831, 834 (8th Cir. 2005), for

                                           5
example, the Eight Circuit held that “[a] subsequent change in the law” regarding

whether drunk driving is an aggravated felony did “not render [an alien’s] waiver

of his right to appeal not ‘considered and intelligent.’”

      Finally, the majority’s decision is at odds with Supreme Court precedent.

As the Supreme Court held long ago, the fact that an agency made a legal error

does not excuse the need for administrative exhaustion. “Obviously, the rules

requiring exhaustion of the administrative remedy cannot be circumvented by

asserting that the charge on which the complaint rests is groundless.” Myers v.

Bethlehem Shipbuilding Corp., 303 U.S. 41, 51–52 (1938). As these cases also

make plain, the majority errs in holding that Felix-Morales is excused from §

1326(d)(1) and (d)(2) because of the IJ’s now incorrect legal conclusion that

statutory rape is an aggravated felony.

      5.     The majority does not reach the question of whether Felix-Morales

may collaterally attack his 1997 deportation order in light of a second error made

by the IJ, that being his failure to advise Morales that he was eligible to apply for

relief under § 212(c) of the Immigration and Nationality Act.

      In contrast to the IJ’s conclusion that statutory rape is an aggravated felony,

the IJ’s failure to inform Felix-Morales of potential discretionary relief deprived

him of the opportunity to seek meaningful administrative and judicial remedies.

                                           6
Therefore, he is excused from the requirements of 8 U.S.C. § 1326(d)(1) and (d)(2)

with respect to this error. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.

2000).

       However, for this claim, Felix-Morales has not satisfied § 1326(d)(3), which

requires him to demonstrate that (1) his due process rights were violated by the IJ’s

failure to advise, and (2) he suffered prejudice as a result of the error. United

States v. Vidal-Mendoza, 705 F.3d 1012, 1015–16 (9th Cir. 2013). “We have held

that the IJ’s failure to inform the alien of potential [discretionary] relief . . . meets

the first prong of this test.” Id. at 1016. To meet the second prong, an alien “must

make a ‘plausible showing’ that an IJ presented with all of the facts would exercise

discretion in the alien’s favor.” United States v. Gonzalez-Flores, 804 F.3d 920,

927 (9th Cir. 2015). This standard requires more than “a showing of mere

possibility or conceivability.” United States v. Valdez-Novoa, 780 F.3d 906, 915

(9th Cir.), cert. denied, 135 S. Ct. 2913 (2015). The alien must “show[] that aliens

with similar circumstances received relief.” Gonzalez-Flores, 804 F.3d at 927.

       First, we identify Felix-Morales’s positive and negative equities that the IJ

would have considered. Gonzalez-Flores, 804 F.3d 920, 927.1 With respect to

       1
              “Favorable considerations include: 1) family ties within the United
States; 2) residence of long duration in this country (particularly when residence
began at a young age); 3) hardship to the petitioner or petitioner’s family if relief is

                                             7
positive equities, Felix-Morales had lived in the United States for a little over nine

years and was employed. He had family in the United States, and his wife,

children, and siblings remain in the country today. While he did not undergo any

psychological counseling for his conviction of statutory rape, friends and

neighbors submitted letters attesting to his good character. Weighing heavily

against these positive equities, however, is the fact that Felix-Morales was

convicted for the statutory rape of his fourteen-year old, learning-disabled niece.

      Second, we must determine whether Felix-Morales has shown that aliens in

similar circumstances have received discretionary relief. He identifies cases that

involve aliens with similar positive equities but who were convicted of drug

crimes. Felix-Morales’s statutory rape conviction is far more serious. In light of

his negative equities, the district court reasonably determined that Felix-Morales

has not shown that it is plausible that he would have received discretionary relief.

See Valdez-Novoa, 780 F.3d at 920.


not granted; 4) service in the United States armed forces; 5) a history of
employment; 6) the existence of business or property ties; 7) evidence of value and
service to the community; 8) proof of rehabilitation if a criminal record exists; 9)
other evidence attesting to good character.” Yepes-Prado v. INS, 10 F.3d 1363,
1366 (9th Cir. 1993). Negative factors include: “1) the nature and underlying
circumstances of the exclusion or deportation ground at issue; 2) additional
violations of the immigration laws; 3) the existence, seriousness, and recency of
any criminal record; 4) other evidence of bad character or the undesirability of the
applicant as a permanent resident.” Id.

                                           8
Accordingly, Felix-Morales’s conviction should be affirmed.




                                 9
