United States v. Marco Gonzalez-Valerio, AKA Marcos Valerio, AKA Marcos Gonzalez Valerio, AKA Marcos Gonzalez-Valerio

The United States appeals the district court’s dismissal of the indictment against Marco Gonzalez-Valerio (“Gonzalez”) for being found in the United States after a prior deportation, in violation of 8 U.S.C. § 1326 . The district court found the underlying deportation order to be invalid because the immigration judge (“IJ”) violated Gonzalez’s right to due process by failing to tell him at the deportation hearing that he was eligible to apply for relief from deportation under former § 212(c) of the Immigration and Nationality Act (“INA”). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3731 , and we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

Gonzalez, a native of Mexico, became a permanent resident of the United States on December 1, 1990. In 1994, he pled guilty to committing a lewd act upon a child under the age of 14. He served approximately three years and 11 months of a six-year sentence before being released. On October 21, 1997, he pled no contest to a charge of violating CaLPenal Code § 273.5, corporal injury upon a spouse. On April 8, 1998, the Immigration and Naturalization Service (“INS”) served Gonzalez with a Notice to Appear for…