                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                           FILED
                             FOR THE NINTH CIRCUIT
                                                                           MAR 16 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 14-50574

               Plaintiff - Appellee,             D.C. No. 3:14-cr-02463-LAB-1

 v.
                                                 MEMORANDUM*
ALBERTO MALDONADO-MELGOZA,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                       Argued and Submitted March 10, 2016
                               Pasadena, California

Before: MURPHY,** PAEZ, and NGUYEN, Circuit Judges.

      Alberto Maldonado-Melgoza challenges his conviction for being a removed

alien found in the United States in violation of 8 U.S.C. § 1326(a) and (b). We

reverse.


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
      “Because the underlying removal serves as a predicate element of an illegal

reentry offense under § 1326, a defendant charged with that offense may

collaterally attack the removal order under the due process clause.” United States

v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). In order to collaterally

attack the order, however, the defendant must meet the criteria laid out in 8 U.S.C.

§ 1326(d). The defendant must demonstrate that:

      (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.

Id. We hold that Maldonado-Melgoza has met these requirements and can

therefore challenge his underlying removal order.

      Maldonado-Melgoza was removed on the basis of his California conviction

for first-degree residential burglary, which the immigration judge determined was

an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). In Dimaya v. Lynch, we

recently held that 18 U.S.C. § 16(b), as incorporated by 8 U.S.C. § 1101(a)(43)(F),

is unconstitutionally vague. 803 F.3d 1110, 1120 (9th Cir. 2015). The government

concedes that in light of Dimaya v. Lynch, Maldonado-Melgoza satisfies

§ 1326(d)(3)’s fundamental unfairness requirement. See United States v.



                                          2
Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). The government maintains

that Maldonado-Melgoza nonetheless cannot challenge his underlying removal

order because he failed to meet the requirements of § 1326(d)(1) and (2).

However, the government waived this argument by failing to raise it before the

district court. See Walsh v. Nevada Dep’t of Human Res., 471 F.3d 1033, 1037

(9th Cir. 2006). Accordingly, Maldonado-Melgoza may collaterally attack his

removal order.

      Intervening changes in law that render a removal order invalid are fully

retroactive for purposes of challenging a § 1326 prosecution. United States v.

Aguilera-Rios, 769 F.3d 626, 633 (9th Cir. 2014). “Otherwise, an individual who

had the right to remain here as a legal resident—and to return to this country if he

leaves—but was removed as a result of a legal error, would be subject to criminal

conviction and incarcerated for returning.” Id. Because Dimaya v. Lynch

invalidated the basis for Maldonado-Melgoza’s removal order, we reverse his

conviction.

      REVERSED.

      The mandate shall issue forthwith.




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