Ninth Circuit on collateral attack, due process, waiver of appeal rights: U.S. v. Melendez-Castro

"Defendant Antonio Melendez-Castro appeals his conviction under 8 U.S.C. § 1326(b) for illegal reentry into the United States after being deported. Melendez-Castro challenges his conviction based on a collateral attack of the underlying removal order. We hold that a defect in Melendez-Castro’s 1997 immigration proceedings, that he was not meaningfully informed of his eligibility for voluntary departure, violated his due process rights. However, the district court did not consider fully whether Melendez-Castro suffered prejudice. We therefore remand for the district court to address this issue in the first instance. ... Melendez-Castro met the statutory requirements for pre-conclusion voluntary departure. 8 U.S.C. § 1229c(a); 8 C.F.R § 1240.26(b). Although he had a criminal record starting with his petty theft of boxer shorts, he also had positive equities that could have been considered in deciding whether to grant him this relief, including his family ties and history of living and working in the United States. See Campos-Granillo, 12 F.3d at 852 n.8. Because the district court erroneously found no due process violation, it did not fully analyze the issue of prejudice, which must be shown for a successful collateral attack. We remand to the district court for consideration of prejudice in the first instance, and the district court should set forth on the record the reasons for its ultimate decision. REMANDED." - U.S. v. Melendez-Castro, Jan. 19, 2012.