Barraza-Duarte

MEMORANDUM **

Abraham Barraza-Duarte appeals from the district court’s order denying his motion to dismiss the indictment charging him with illegal reentry after deportation, in violation of 8 U.S.C. § 1326 (a). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we vacate and remand.

Barraza-Duarte contends that the district court erred in rejecting his due process challenges to his underlying removal proceedings. He asserts that the Immigration Judge failed to advise him that he was eligible to adjust his status under 8 U.S.C. § 1255 (i)(l)(A), which applies to him because he is married to a United States citizen. We agree.

The district court, denied his motion, finding that Barraza-Duarte failed to establish a plausible basis for such relief because he was not entitled to a waiver from inadmissibility under 8 U.S.C. § 1182 (h).

Such a waiver is only at issue if Barraza-Duarte was convicted of a predicate crime, such as a crime of moral turpitude. The district court, however, did not make any findings in this regard, and furthermore it did not have the benefit of our decision in Fernandez-Ruiz v. Gonzales, 468 F.3d 1159 (9th Cir.2006). On review of the record, the…