                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 16 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50670

              Plaintiff - Appellee,              D.C. No. 3:08-cr-04494-JLS-1

  v.
                                                 MEMORANDUM *
FERNANDO RAMOS-CRUZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                     Argued and Submitted December 9, 2010
                              Pasadena, California

Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.

       The IJ’s classification of Ramos-Cruz’s felony DUI conviction under

California Vehicle Code § 23152(b) as an aggravated felony was an error. See

Leocal v. Ashcroft, 543 U.S. 1, 11 (2004); Montiel-Barraza v. INS, 275 F.3d 1178,

1180 (9th Cir. 2002). That this error became apparent only in light of later-decided



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
authority does not alter our analysis. Compare United States v. Pallares-Galan,

359 F.3d 1088, 1103–04 (9th Cir. 2004), with Avila-Sanchez v. Mukasey, 509 F.3d

1037, 1040–41 (9th Cir. 2007), and Alvarenga-Villalobos v. Ashcroft, 271 F.3d

1169, 1172–73 (9th Cir. 2001). Therefore, the IJ’s failure to inform Ramos-Cruz

of his eligibility for relief from removal violated Ramos-Cruz’s due process rights,

and his waiver of appeal from the removal order cannot bar him from collaterally

attacking that order. See 8 U.S.C. § 1326(d)(1)–(2); United States v. Muro-Inclan,

249 F.3d 1180, 1183 (9th Cir. 2001) (“The exhaustion requirement of 8 U.S.C. §

1326(d) cannot bar collateral review of a deportation proceeding when the waiver

of right to an administrative appeal did not comport with due process.”).

      Ramos-Cruz has also demonstrated that he was prejudiced by the IJ’s error,

see 8 U.S.C. § 1326(d)(3), because the sole basis for his removal was that he had

committed an aggravated felony, namely, his felony DUI. See United States v.

Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). The 2004 and 2008

reinstatement orders are irrelevant to the question of prejudice, because a

reinstatement of an invalid removal order is itself invalid. United States v.

Arias-Ordonez, 597 F.3d 972, 978 (9th Cir. 2010).




                                          2
      Accordingly, we reverse Ramos-Cruz’s conviction and remand to the district

court with instructions to vacate the underlying indictment. Because we reverse

Ramos-Cruz’s conviction, we need not reach his arguments regarding his sentence.

      REVERSED AND REMANDED.




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