United States v. Evaristo Rangel-Gonzales

This is an appeal from a conviction of illegal entry after deportation. 8 U.S.C. § 1326 (1976). We are called upon to apply the standards laid down in United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 1979), for collateral attacks on deportation based on violations of INS regulations.

This matter was first before this Court as a companion to United States v. Calderon-Medina. The trial court had dismissed the indictment on the ground that, in the underlying deportation, the INS had failed to advise the defendant of his right to consult with Mexican Consular authorities as required by INS regulations. 8 C.F.R. § 242 .-2(e) (1979). In the first appeal this Court remanded with instructions that the trial court consider whether the violation had prejudiced interests of the defendant protected by the regulation. On remand, after consideration of affidavits submitted on behalf of both the defendant and the government, the trial court found no prejudice. The matter is now before this Court in order to determine whether there was a sufficient showing of prejudice within the meaning of Calderon-Medina . We hold that there was a sufficient showing and reverse the trial court.

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