United States v. Jose Alfredo Pallares-Galan

Pallares-Galan appeals from a judgment of conviction following a conditional plea of g-uilty to one count of unlawful reentry of a deported alien, a violation of 8 U.S.C. § 1326 . We are required to decide whether a California Annoying or Molesting -a Child Under 18 misdemeanor conviction, Cal. Pen.Code § 647.6(a), constitutes an aggravated felony conviction, specifically, “sexual abuse of a minor,” 8 U.S.C. § 1101 (a)(43)(A), for purposes of deportation law, see 8 U.S.C: § 1227(a)(2)(A)(iii). We hold that it does not, and consequently, that Pallares was eligible for discretionary relief from deportation in the form of cancellation of removal (8 U.S.C. § 1229b). Because the Immigration Judge erroneously advised Pallares that he was not eligible, and because Pallares’ waiver of his right to appeal the removal order was not “considered and intelligent” for that and other reasons, we conclude that his claim is not barred by the exhaustion requirement of 8 U.S.C. § 1326 (d)(1), and further, that the underlying deportation order was procedurally defective. We REVERSE and REMAND with directions to the district court to consider whether Pallares suffered prejudice as a result,…