Marmolejo-Gutierrez

*139 MEMORANDUM **

Rodolfo Marmolejo-Gutierrez pled guilty in 1995 to assault and was sentenced to three years’ imprisonment. He had previously pleaded guilty to vehicular manslaughter, a conviction not relevant to this appeal. At the time of his 1995 plea, assault was classified as an aggravated felony but, because the sentence was less than five years, under the immigration laws as they then stood Marmolejo-Gutierrez was not subject to deportation.

In 1997, while serving his sentence, Marmolejo-Gutierrez was placed in deportation proceedings on account of his 1995 conviction. The immigration judge (“IJ”) failed to inform him of his eligibility for discretionary relief from deportation under § 212(c) of the Immigration and Nationality Act. 1 Marmolejo-Gutierrez was deported. He returned to the United States, was arrested in 2001, and was indicted for illegal reentry in violation of 8 U.S.C. § 1326 . He moved to dismiss the indictment on the ground that his prior deportation was unlawful in that the IJ faded to advise him of his eligibility for § 212(c) relief. The district court granted the motion and the government now appeals.

In 1996, Congress adopted the Anti-Terrorism and…