United States v. Manuel Gonzales

Ninth Circuit

United States v. Manuel Gonzales

552 F. App'x 671

CourtCourt of Appeals for the Ninth Circuit

DecidedJanuary 14, 2014

Docket12-50223

StatusUnpublished

This text of 552 F. App'x 671 (United States v. Manuel Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Manuel Gonzales, 552 F. App'x 671 (9th Cir. 2014).

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Opinion

MEMORANDUM **

Appellant Manuel Gonzales (Gonzales), who was convicted of being a deported alien found in the United States, challenges the district court’s denial of his motion to dismiss the indictment. He contends that his underlying removal was invalid because the immigration judge (IJ) failed to inform him of his eligibility for relief pursuant to Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) (allowing aliens to seek relief by combining an adjustment of status under 8 U.S.C. § 1255(a) and a waiver of inadmissibility under former 8 U.S.C. § 1182(c)), thereby depriving him of due process and judicial review, and excusing his failure to seek administrative relief. See United States v. Rojas-Pedroza, 716 F.3d 1253, 1262 (9th Cir.2013). He further contends that he suffered prejudice because he had a plausible claim for relief under former 8 U.S.C. § 1182(c).

The district court determined that Gonzales had “failed to demonstrate that then-existing BIA precedent would have provided him with a plausible path to relief by applying for adjustment of status.” However, the government conceded at oral argument that Gabryelsky relief was available to Gonzales. Because the district court failed to address whether Gonzales was eligible for Gabryelsky relief by combining an adjustment of status under 8 U.S.C. § 1255(a) and a waiver of inadmissibility under former 8 U.S.C. § 1182(c), we vacate the judgment and remand for the district court to consider whether Gonzales was eligible for Gabryelsky relief and whether Gonzales has made “a plausible showing that the facts presented would cause the Attorney General to exercise discretion in his favor.” Rojas-Pedroza, 716 F.3d at 1263 (citation and internal quotation marks omitted).

VACATED and REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

Appellant Manuel Gonzales (Gonzales), who was convicted of being a deported alien found in the United States, challenges the district court’s denial of his motion to dismiss the indictment. He contends that his underlying removal was invalid because the immigration judge (IJ) failed to inform him of his eligibility for relief pursuant to Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) (allowing aliens to seek relief by combining an adjustment of status under 8 U.S.C. § 1255(a) and a waiver of inadmissibility under former 8 U.S.C. § 1182(c)), thereby depriving him of due process and judicial review, and excusing his failure to seek administrative relief. See United States v. Rojas-Pedroza, 716 F.3d 1253, 1262 (9th Cir.2013). He further contends that he suffered prejudice because he had a plausible claim for relief under former 8 U.S.C. § 1182(c).

The district court determined that Gonzales had “failed to demonstrate that then-existing BIA precedent would have provided him with a plausible path to relief by applying for adjustment of status.” However, the government conceded at oral argument that Gabryelsky relief was available to Gonzales. Because the district court failed to address whether Gonzales was eligible for Gabryelsky relief by combining an adjustment of status under 8 U.S.C. § 1255(a) and a waiver of inadmissibility under former 8 U.S.C. § 1182(c), we vacate the judgment and remand for the district court to consider whether Gonzales was eligible for Gabryelsky relief and whether Gonzales has made “a plausible showing that the facts presented would cause the Attorney General to exercise discretion in his favor.” Rojas-Pedroza, 716 F.3d at 1263 (citation and internal quotation marks omitted).

VACATED and REMANDED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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552 F. App'x 671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-manuel-gonzales-ca9-2014.

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