The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT DUE TO AN INVALID DEPORTATION (Doc. No. 26)
On November 28, 2006, Carlos Jesus Marguet-Pillado ("defendant") was indicted on one count of being a deported alien found in the United States. Presently before the Court is defendant's motion to dismiss that indictment because the deportation was allegedly invalid. The Court denies the motion.
Defendant was born in Tijuana on November 4, 1968. (Def. Exhibit A.) Defendant's biological father is unknown, and the parties agree that Mr. Michael Marguet is not defendant's biological father. (Def. Memo. ISO Motion, at 1; Govt. Opp., at 2.) Nonetheless, Mr. Marguet held defendant out as his son, claiming him as a dependent on tax returns and obtaining federal food stamp aid for him. (Def. Memo. ISO Motion, at at 2.) Mr. Marguet was named as defendant's father on a Mexican birth certificate filed on August 23, 1973--almost five years after defendant's actual date of birth. (Def. Exhibit A.) During an interview with an immigration examiner on January 9, 1974, Mr. Marguet claimed that he registered defendant as his own child because he wanted to marry defendant's mother, Juana Pillado, and immigrate her family. (Def. Exhibit H.) That same date, defendant became a lawful permanent resident. (Govt. Opp., at 2.)
After convictions in San Diego County Superior Court for second-degree burglary and attempted murder with a firearm, defendant was released from prison in 2002. (Def. Memo. ISO Motion, at 2.) In 2006, defendant was taken into custody in an unrelated incident*fn1 and turned over to immigration authorities. (Id.) Defendant moved to terminate removal proceedings, claiming derivative citizenship through Mr. Marguet. (Def. Exhibit F.) The Government opposed the motion on the basis of evidence (including, inter alia, Mr. Marguet's interview with the immigration examiner) that Mr. Marguet was not defendant's biological father. (Def. Exhibit G.) In a hearing on September 22, 2006, the immigration judge denied defendant's motion to terminate removal proceedings and ordered defendant deported. (Def. Exhibit E.)
Defendant was apprehended in a traffic stop in Chula Vista on October 20, 2006. (Govt. Opp., at 3.) He was arrested on two outstanding domestic violence warrants and referred to immigration officials. (Id.)
In a § 1326 prosecution, Fifth Amendment due process "requires a meaningful opportunity for judicial review of the underlying deportation." United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987); United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998), overruled on other grounds by United States v. Corona-Sanchez, 291 F.3d 1201, 1208-10 (9th Cir. 2002) (en banc). If the defendant cannot obtain judicial review in the underlying deportation, the defendant may collaterally attack the deportation in the criminal proceeding. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). To launch a collateral attack, the defendant must show exhaustion of any available administrative remedies, deprivation of opportunity for judicial review at the deportation proceedings, and fundamental unfairness of the deportation order. 8 U.S.C. § 1326(d); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). The removal order is fundamentally unfair if "(1) [a defendant's] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." Ubaldo-Figueroa, 364 F.3d at 1048 (quoting Zarate-Martinez, 133 F.3d at 1197). To establish prejudice, the defendant must establish a "'plausible' ground for relief from deportation." Id. at 1050 (quoting Arrieta, 224 F.3d at 1079).
Defendant claims his deportation proceeding was defective because the immigration judge incorrectly advised him on the law by stating that he could not establish derivative citizenship unless he had a biological relationship with Mr. Marguet, a United States citizen. Defendant argues the Immigration and Naturalization Act ("INA"), as written at the time of his birth and immigration, did not require such a biological relationship. Misinstruction on the law is a violation of due process. Ubaldo-Figueroa, 364 F.3d at 1049; United States v. Ahumada-Aguilar, 295 F.3d 943, 950 (9th Cir. 2002).
"The applicable law for transmitting citizenship to a child born abroad when one parent is a U.S. citizen is the statute that was in effect at the time of the child's birth." Scales v. Immigration & Naturalization Serv., 232 F.3d 1159, 1162 (9th Cir. 2000) (internal quotations omitted).
The Government concedes Marguet-Pillado's derivative citizenship claim must be examined under the pre-1986 version of the statute. (Govt. Opp., at 5.) The question, therefore, is the proper interpretation of the INA at the time of Marguet-Pillado's birth and purported legitimation.
Under 8 U.S.C. § 1401(a)(7) (1966), the category of "citizens of the United States at birth" included: a person born outside of . . . the United States . . . of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years.
This version of § 1401(a)(7) "appl[ied] as of the date of birth to a child born out of wedlock . . . if the paternity of such child is established while such child is under the age of twenty-one years by legitimation." Id. § 1409(a) (1952) (emphasis added). A child could be legitimated under the law of the child's or parent's residence or domicile. Id. Marguet-Pillado argues that this version of the statute contained no requirement of a blood relationship between a father and child. Therefore, the immigration judge allegedly erred in failing to determine whether Marguet-Pillado was legitimated under California law.
The Government interprets the statute differently, arguing that the proper construction of § 1409(a) begins with "paternity". Because the parties agree Mr. Marguet is not defendant's biological father, the Government argues that defendant cannot ...