Miravete-Basanez

MEMORANDUM **

Arturo Miravete-Basanez appeals his conviction of illegal reentry after deportation in violation of 8 U.S.C § 1326, arguing that his prior deportation hearing denied him due process of law. We have jurisdiction under 28 U.S.C. § 1291 , and we reverse and remand.

We review de novo the denial of Miravete’s motion to dismiss the indictment. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004). Miravete’s felony conviction was properly considered by the Immigration Judge (“IJ”) although it was not charged in the Notice to Appear as a ground for deportation. See United States v. Gonzalez-Valerio, 342 F.3d 1051, 1055-56 (9th Cir.2003).

Miravete pled guilty to first-degree burglary and received a thirty-two month sentence in March 1996, at a time when he had a claim for relief under former § 212(c) of the Immigration and Naturalization Act, and the failure of the IJ to inform him of his eligibility violated his due process rights. See id. at 1054; Ubaldo-Figueroa, 364 F.3d at 1049-50 . He is therefore exempt from the requirement that he exhaust his administrative remedies by appealing his removal order to the Board of Immigration Appeals. See…