Court Overturns Illegal Re-entry Indictment

(CN) - A man indicted for illegally re-entering the United States from Mexico won a legal hurdle after the 9th Circuit sided with a lower court's order that his 1994 deportation was invalid because the immigration judge didn't advise him of his rights to appeal.

In affirming the lower court's decision to toss the charges, the three-judge panel noted that Edmundo Lopez-Velasquez had lived in the United States for at least seven years, was married to a U.S. citizen and had two young American kids.

Considering those factors, he "would surely have been a strong candidate for this discretionary relief had he applied for it," the San Francisco-based federal appeals court ruled.

Lopez-Velasquez came to the United States in the early 1980s and got legal status in 1988. He married a U.S. citizen in 1987 and had two children.

He was arrested for delivery of a controlled substance in 1993, and received eight months in state prison. In 1994, he was brought before an immigration judge and, during a group proceeding, he waived his right to appeal and was deported.

He returned to the United States in 2006 and was indicted for "knowingly and unlawfully re-entering" the country.

Lopez-Velasquez moved to dismiss the indictment on the ground that the original 1994 deportation order violated his due process rights and was invalid because the immigration judge failed to inform him of his availability of relief.

The district court agreed and dismissed the complaint, a decision affirmed by the 9th Circuit.

"Lopez-Velasquez's prior deportation was 'fundamentally unfair' and cannot serve as the basis for his illegal re-entry conviction because he was prejudiced by the (immigration judge's) failure to inform him of his possible eligibility for relief," Judge Reinhardt wrote.

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