ADVERTISEMENTS

U.S. v. Lopez-Velasquez, No. 07-30241 (12-7-10) (en banc) (Callahan). The 9th, in an en banc opinion, sets out the duties of an Immigration Judge in informing an alien of the chances of relief. The line the 9th draws is that the IJ has a duty that is limited to informing the alien of a reasonable possibility that the alien is eligible for relief at the time of the hearing. There may be narrow exceptions when the IJ has the duty to inform the alien of relief for which he would be eligible given an imminent change in the law, but such circumstances are not presented here. This case arose because the defendant, facing immigration charges, argued that he should have been informed of the possibility that 212(c) relief might have been interpreted differently. The IJ is not supposed to be clairvoyant. As the opinion concludes: The IJ?s duty is to inform the alien of "a reasonable possibility that the petitioner may be eligible for relief." Moran-Enriquez, 884 F.2d at 423. This duty did not require the IJ to inform defendant of relief for which he was not then eligible and for which he would become eligible only with a change in law and the passage of eight months. Rather, an IJ?s duty is limited to informing an alien of a reasonable possibility that the alien is eligible for relief at the time of the hearing. Because defendant has not established that his deportation order was invalid, his motion to dismiss his § 1326 indictment was improperly granted. For the foregoing reasons, we reverse the district court?s order granting the motion to dismiss the indictment.

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