The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT
Defendant moves to dismiss the indictment on the ground that his prior conviction for assault with a firearm, in violation of Cal. Penal Code §245(a), is not a crime of violence as that term is defined in 8 U.S.C. §16. The Government opposes the motion. For the reasons set forth below, the motion to dismiss the indictment is denied.
On October 9, 2007 Defendant attempted to enter the United States at the San Ysidro Port of Entry. Defendant, along with three other individuals, were concealed in the trunk of an automobile that sought entry into the United States. Upon discovery, Defendant was taken to secondary where it was determined that Defendant had a criminal and immigration history.
Defendant's criminal history arises from a January 18, 2000 conviction by plea in Los Angeles Superior Court for Assault with a Firearm in violation of Penal Code §245(a)(2). Defendant received a 72 month custodial sentence and was also ordered to pay restitution to the victim for medical, hospital, and lost wages expenses.
On December 30, 2004 an immigration judge determined that the assault with a firearm conviction rendered Defendant removable as the conviction was a crime of violence which constituted an aggravated felony. Defendant was removed yet returned to the United States. On December 4, 2006 Defendant was convicted in this district of alien smuggling in violation of 8 U.S.C. §1324. Defendant now challenges the immigration judge's determination that violation of Penal Code §245(a)(2) is an aggravated felony.
A defendant in a §1326 prosecution may collaterally attack the prior deportation before trial and preclude the government from relying on such deportation only "if the deportation proceeding was so procedurally flawed that it effectively eliminated the right of an alien to obtain judicial review. . . ." United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir. 1996), cert. denied, 117 S.Ct. 1096 (1997). The collateral attack of a prior deportation is statutorily permitted only if:
(1) the alien has exhausted any administrative remedies that may have been available to seek relief against the order,
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity to seek relief against the order; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. §1326(d)(1-3). To prevail in attacking the validity of a prior deportation the defense must show that (1) due process rights were in fact violated and (2) prejudice. United States v. Gutierrez-Alba, 128 F.3d 1324 (9th Cir. 1997).
Defendant argues that assault with a deadly weapon is not an aggravated felony. Defendant contends that a conviction for assault with a deadly weapon under Penal Code §245(a) may be sustained upon proof that a person acted either recklessly or negligently and therefore the crime is not categorically a crime of violence. This argument is not persuasive.
The process for determining whether a prior conviction qualifies as an aggravated felony is summarized in United States v. Pallares-Galan, ...