United States of America v. Manuel Gonzales

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MANUEL GONZALES,
Defendant - Appellant.
No. 12-50223
D.C. No. 3:11-cr-02745-JM-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted August 27, 2013
Pasadena, California
Before: GOULD and RAWLINSON, Circuit Judges, and HUCK, District Judge. **
Appellant Manuel Gonzales (Gonzales), who was convicted of being a
deported alien found in the United States, challenges the district court’s denial of
his motion to dismiss the indictment. He contends that his underlying removal was
FILED
JAN 14 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Paul C. Huck, Senior U.S. District Judge for the
Southern District of Florida, sitting by designation.

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invalid because the immigration judge (IJ) failed to inform him of his eligibility for
relief pursuant to Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993) (allowing
aliens to seek relief by combining an adjustment of status under 8 U.S.C § 1255(a)
and a waiver of inadmissibility under former 8 U.S.C. § 1182(c)), thereby
depriving him of due process and judicial review, and excusing his failure to seek
administrative relief. See United States v. Rojas-Pedroza, 716 F.3d 1253, 1262
(9th Cir. 2013). He further contends that he suffered prejudice because he had a
plausible claim for relief under former 8 U.S.C § 1182(c).
The district court determined that Gonzales had “failed to demonstrate that
then-existing BIA precedent would have provided him with a plausible path to
relief by applying for adjustment of status.” However, the government conceded at
oral argument that Gabryelsky relief was available to Gonzales. Because the
district court failed to address whether Gonzales was eligible for Gabryelsky relief
by combining an adjustment of status under 8 U.S.C § 1255(a) and a waiver of
inadmissibility under former 8 U.S.C. § 1182(c), we vacate the judgment and
remand for the district court to consider whether Gonzales was eligible for
Gabryelsky relief and whether Gonzales has made “a plausible showing that the
facts presented would cause the Attorney General to exercise discretion in his
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favor.” Rojas-Pedroza, 716 F.3d at 1263 (citation and internal quotation marks
omitted).
VACATED and REMANDED.
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