An Immigration Judge's duty to inform an alien of availability of discretionary relief from removal is limited to situations where there is a reasonable possibility the alien is eligible for relief at the time of the hearing. An Immigration Judge is not required to inform an alien about relief he is not then eligible for and for which he would become eligible only with a change in law and a delay of eight months.

The government indicted Edmundo Lopez-Velasquez for illegal reentry after deportation and he defended that the immigration judge presiding over his deportation hearing did not explain the remedies available to him at the time of the hearing, specifically a 212(c) waiver.

Immigration regulations require the immigration judge to inform an alien of “apparent eligibility” for relief. 8 C.F.R. § 1240.11(a)(2).  The Ninth Circuit has interpreted “apparent eligibility” to mean “where the record, fairly reviewed by an individual who is intimately familiar with the immigration laws—as IJs no doubt are—raises a reasonable possibility that the petitioner may be eligible for relief.”  Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir. 1989).  The Ninth Circuit has also repeatedly held that an immigration judge's failure to advise an alien violates due process and can serve as the basis for a collateral attack to a deportation order where, as here, the order is used as the predicate for an illegal reentry charge under § 1326. United States v. Ubaldo Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004).

The Ninth Circuit held that the immigration judge did not make an error in failing to inform Lopez-Velasquez of the availability of Special Agricultural Worker benefits because because the law as it existed at that time did not clearly indicate that he was eligible for a benefit.

Read the decision here, US v. Lopez-Velasquez, No. 07-30241, 9th Cir., decided December 7, 2010.