United States v. Raul Guzman-Ibarez

Raul Guzman-Ibarez appeals his conviction and sentence for illegal reentry after deportation or removal. See 8 U.S.C. § 1326 . Specifically, he asserts that his indictment should have been dismissed by the district court because he was denied due process at his deportation hearing on August 25, 1999, which precludes use of the deportation order in a criminal pro *1097 ceeding. See id. § 1326(d). We vacate his conviction and sentence and remand.

BACKGROUND

Guzman was born in Mexico, but came to the United States in 1979, when he was about six years old. He became a Legal Permanent Resident (“LPR”) on July 13, 1989. He was far from being a perfect peregrine; rather, he committed numerous crimes and on December 21, 1995, a deportation proceeding was initiated against him. Undeterred, he committed a robbery in California, was convicted of first degree robbery 1 on February 14, 1997, and was sentenced to four years’ imprisonment as a result. Because state criminal proceedings necessitated a delay in the deportation proceeding, it was administratively closed in 1997. Guzman served his term, and the deportation proceeding was reopened. On August 12, 1999, the robbery…

concurring in part and dissenting in part:

I concur fully in Parts A and B of the opinion, but I respectfully disagree with the analysis in Part C. In addition to informing Guzman about his eligibility for *1102 § 212(c) relief, the IJ should have advised him he was eligible for § 212(h) relief.

Section 212(h) prohibits relief only for “an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if ... since the. date of such admission the alien has been convicted of an aggravated felony.” 8 U.S.C. § 1182 (h) (emphasis added). Relying on In re Rosas-Ramirez, 22 I. & N. Dec. 616, 618-19 (BIA 1999), the opinion concludes the IJ had no obligation to inform Guzman of his eligibility for § 212(h) relief because the term “admitted” includes adjustments of status.

Rosas is inapposite. There, the BIA analyzed the meaning of “admission” in the specific statutory context of INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227 (a)(2)(A)(iii), which provides that “[a]ny alien who is convicted of an aggravated .felony at any time after admission is deportable.” 22 I. & N. Dee. at 617 (emphasis added). The BIA concluded “the reference in section…

BACKGROUND

Guzman was born in Mexico, but came to the United States in 1979, when he was about six years old. He became a Legal Permanent Resident (“LPR”) on July 13, 1989. He was far from being a perfect peregrine; rather, he committed numerous crimes and on December 21, 1995, a deportation proceeding was initiated against him. Undeterred, he committed a robbery in California, was convicted of first degree robbery1 on February 14, 1997, and was sentenced to four years’ imprisonment as a result. Because state criminal proceedings necessitated a delay in the deportation proceeding, it was administratively closed in 1997. Guzman served his term, and the deportation proceeding was

1 See Cal. Penal Code §§ 211, 212.5(a).

UNITED STATES V. GUZMAN-IBAREZ

reopened. On August 12, 1999, the robbery conviction was added to the charges supporting his deportation. On August 25, 1999, the immigration judge (IJ) found that he was deportable as an alien convicted of an aggravated felony (8 U.S.C. § 1227(a)(2)(A)(iii)) and a firearm offense (8 U.S.C. § 1227(a)(2)(C)), and that he was ineligible for discretionary relief based upon his robbery conviction. Guzman waived…