The Ninth Circuit, in a criminal reentry case, has invalidated an administrative order of removal.  The petitioner had been convicted of an aggravated felony and placed in administrative removal proceedings.  However, prior to the initiation of removal proceedings, she had been the victim of a crime that made her facially eligible to apply for a U visa.  The ICE officer who interviewed her and processed her for administrative removal proceedings advised her that an attorney could not help because she had been convicted of an aggravated felony.  As a result of this misrepresentation (an attorney could have helped the petitioner apply for a U visa), the petitioner waived her right to counsel.  The Ninth Circuit found that the ICE officer's misrepresentation had violated her due process rights.

The Ninth Circuit also found that the petitioner had been prejudiced by the misrepresentation.  Even though a person in administrative removal proceedings is not typically eligible for any discretionary relief, an ICE officer has the authority to place the person in "regular" removal proceedings.  Given the petitioner's eligibility for a U visa, an ICE officer very likely could have transferred her proceedings if a U visa application was filed, and as such, the petitioner was prejudiced by the ICE officer's conduct which induced a waiver of her right to counsel.

The full text of United States v. Cisneros-Rodriguez can be found here: