UNITED STATES of America, Plaintiff-Appellee, v. Rafael MAGANA-CANCINO, Defendant-Appellant, 390 F. App'x 643

MEMORANDUM 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 statu- • tory counterpart in the inadmissibility 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, 435 (9th Cir.1994), abrogated on other grounds by Abebe v. Mukasey, 554 F.3d 1203 (9th Cir.2009) (en banc) (indicating that Ko-marenko’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-Fiqueroa, 364 F.3d at 1050. . [3] Magana’s underlying deportation was fundamentally unfair. He was actually and legally innocent of the deportation charge.

To be deportable as charged, Ma-gana-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 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. 788, 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.

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. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.