                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 27 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50298

              Plaintiff - Appellee,              D.C. No. 3:07-CR-02601-JAH-1

  v.
                                                 MEMORANDUM *
RAFAEL MAGANA-CANCINO,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                             Submitted July 15, 2010 **
                               Pasadena, California

Before: FARRIS and SILVERMAN, Circuit Judges, and CAMP, Senior District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Jack J. Camp, Senior United States District Judge for
the District of Northern Georgia, sitting by designation.
      Rafael Magana-Cancino appeals his conviction for one count of being a

deported alien found in the United States in violation of 8 U.S.C. § 1326. Magana-

Cancino attacks the validity of his underlying deportation and the propriety of the

grand jury instructions. We have jurisdiction under 28 U.S.C. § 1291.

      We review the district court’s denial of a motion to dismiss an indictment de

novo. United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010). To

collaterally attack an underlying deportation order 8 U.S.C. § 1326(d) requires (1)

exhaustion of administrative remedies; (2) improper deprivation of judicial review;

and (3) fundamental unfairness. Id. A defendant is excused from exhausting his

claim when the immigration judge failed to inform him that he was eligible for

INA § 212(c) relief. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1049 (9th

Cir. 2004). Magana is excused from exhaustion. His ground for removal has a

statutory counterpart in the inadmissability statute rendering him eligible for relief.

Aguilar-Ramos v. Holder, 594 F.3d 701, 706 (9th Cir. 2010); compare 8 U.S.C. §

1227(a)(1)(A) with 8 U.S.C. § 1182(a)(2)(A)(i)(I).

      The IJ and district court erred in considering the underlying conviction for a

firearm offense for which there was no statutory counterpart. The INS has

discretion in charging aliens with various grounds for deportability and we decline

to speculate about INS charging decisions. See Komarenko v. I.N.S., 35 F.3d 432,


                                           2
435 (9th Cir. 1994), abrogated on other grounds by Abebe v. Mukasey, 554 F.3d

1203 (9th Cir. 2009) (en banc) (indicating that Komarenko’s equal protection

analysis was dead letter); cf. Al Mutarreb v. Holder, 561 F.3d 1023, 1029 (9th Cir.

2009). Matter of Montenegro, 20 I. & N. Dec. 603, 604 (BIA 1992), relied on by

the IJ, is distinguishable. There the charged basis for deportability was a firearm

offense, not a crime of moral turpitude.

        The government argues that Abebe v. Mukasey precludes Magana from

being eligible for § 212(c) relief. 554 F.3d at 1207. Abebe is inapposite. It

addresses only the constitutional necessity of the statutory counterpart rule. It does

not address Magana’s eligibility for relief provided by 8 C.F.R. § 1212.3.

        The IJ’s failure to inform Magana of his eligibility for relief also improperly

deprived him of the opportunity for judicial review. Ubaldo-Figueroa, 364 F.3d at

1050.

        Magana’s underlying deportation was fundamentally unfair. He was

actually and legally innocent of the deportation charge. To be deportable as

charged, Magana must have been “[a]n[] alien who at the time of entry or

adjustment of status was within one or more of the classes of aliens inadmissible

by the law existing at such time.” 8 U.S.C. § 1227(a)(1)(A). Magana was not

inadmissible at the time of entry. Magana was admitted in 1987 under the Special


                                            3
Agricultural Worker provisions, was convicted of the underlying offense in 1990,

and then received an adjustment of status to permanent resident status later in

1990. The date that applies is 1987, not 1990. Perez-Enriquez v. Gonzales, 463

F.3d 1007, 1012 (9th Cir. 2006) (en banc). The district court erred in holding that

Perez-Enriquez did not apply. Perez-Enriquez is based on a BIA decision from

1993, well before Magana’s immigration hearing. Id. at 1011-12 (discussing

Matter of Jimenez-Lopez, 20 I. & N. Dec. 738, 742-43 (BIA 1993)). We held that

“the BIA’s opinion in Jimenez-Lopez, published in 1993, is alone dispositive of

this case as a clear, authoritative explication of the operation of § 1160(a). We

give Chevron deference to published decisions of the BIA interpreting the

immigration statutes it is charged to administer.” Id. at 1012. Izaguirre-Ramos v.

I.N.S. , 41 F.3d 1513 (9th Cir. 1994) is not intervening binding precedent. It was

an unpublished opinion and addressed a completely different issue.

      The government argues that Magana did not suffer prejudice because his

assault with a firearm conviction could have been used as the basis for his

deportation. See 8 U.S.C. § 1227(a)(2)(C). We rejected this argument in Al

Mutarreb v. Holder, 561 F.3d at 1029. We consider only the ground charged.

Magana’s underlying deportation was defective. It cannot support his conviction.




                                          4
      As we have concluded Magana was actually innocent of the charge, we do

not reach the issue of whether Magana had a plausible claim for § 212(c) relief and

we do not consider Magana’s arguments regarding the grand jury.

      REVERSED.




                                         5
