United States v. Jose Rodriguez-Arroyo

MEMORANDUM

Appellant Jose Trinidad Rodriguez-Arroyo (“Rodriguez”), a U.S. Marine Corps veteran who served in Vietnam and was honorably discharged, was admitted to the United States as a lawful permanent resident in 1973. He has two U.S. citizen children and other U.S. citizen relatives. He appeals his conviction for attempted entry after deportation in violation of 8 U.S.C. § 1326 . Rodriguez moved before the district court for dismissal of that count of his indictment, alleging that his deportations in 1998 and 2005 were invalid. See 8 U.S.C. § 1326 (d). The government conceded error in the 1998 deportation. The district court determined that the 2005 deportation was valid and denied the motion.

Rodriguez alleges that he was deprived of due process in his 2005 deportation because he was not adequately informed of his right to apply for voluntary departure. “The requirement that the IJ inform an alien of his or her ability to apply for relief from removal is mandatory, and failure to so inform the alien of his or her eligibility for relief from removal is a denial of due process that invalidates the underlying deportation proceeding.” United States v. Ubaldo-Figueroa, 364 F.3d…