                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               JAN 14 2014

                                                                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-50223

              Plaintiff - Appellee,              D.C. No. 3:11-cr-02745-JM-1

  v.
                                                 MEMORANDUM*
MANUEL GONZALES,

              Defendant - Appellant.


                   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

        *
             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.
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




                                          2
favor.” Rojas-Pedroza, 716 F.3d at 1263 (citation and internal quotation marks

omitted).

      VACATED and REMANDED.




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