UNITED STATES of America, Plaintiff-Appellee, v. Fernando RAMOS-CRUZ, Defendant-Appellant, 406 F. App'x 177

MEMORANDUM 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, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004); Montiel-Barraza v. INS, 275 F.3d 1178, 1180 (9th Cir.2002). That this error became apparent only in light of later-decided 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). 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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.