Peres-Peres

MEMORANDUM **

Defendant Jose Peres-Peres appeals from a conviction under 8 U.S.C. § 1326 for being in the United States in July 2007 without the consent of the Secretary of the Department of Homeland Security, 1 after having been previously deported in 1991. Peres-Peres argues that he should have been allowed to present a defense under 8 U.S.C. § 1326 (a)(2)(B) that he was not required to obtain such consent.

The government asks us to affirm the district court’s pre-trial denial of the defense on the ground that it is only available to those who were previously “denied admission and removed,” 8 U.S.C. § 1326 (a)(2)(B), not to those who were deported or removed from within the country. See United States v. Gutierrez-Alba, 128 F.3d 1324, 1327-28 (9th Cir.1997) (holding, under the earlier wording of the statute, that an alien who was “arrested and deported” rather than “excluded and deported” cannot assert a defense under § 1326(a)(2)(B)). The district court erred in barring the defense because the government failed to submit any evidence at that stage of the proceedings establishing that Peres-Peres was previously deported from within the country rather than “denied admission and…