Saldivar-Vargas
United States v. Saldivar-Vargas
Opinion
Opinion
Rhoades, J.
ORDER GRANTING MOTION FOR RECONSIDERATION, GRANTING MOTION TO DISMISS, AND DISMISSING INDICTMENT
I. Introduction
Defendant Joel Saldivar-Vargas (“Saldivar-Vargas”) is charged in a one-count indictment with being an alien found in the United States after previously being “excluded, deported and removed” in violation of 8 U.S.C. § 1326 . Saldivar-Vargas moved to dismiss the indictment on the ground that his prior removal proceeding may not be used to demonstrate that he was previously removed due to the immigration judge’s (“IJ”) failure to inform him of, and to allow him to apply for, discretionary relief from removal pursuant to Immigration and Nationality Act (“INA”) § 212(c). The court denied that motion. Saldivar-Vargas has filed a motion for reconsideration in light of recent Ninth Circuit case law. For the reasons set forth below, the motion is granted, and the indictment is dismissed.
II. Background
Saldivar-Vargas, a citizen of Mexico, was granted legal permanent resident status on December 1, 1990. On April 7, 1994, Saldivar-Vargas pleaded guilty to rape by a foreign object. He served 365 days, or one year, in county jail. Under the immigration laws then in effect, he…