The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT
Defendant Ramiro Ramos-Medina moves to dismiss the indictment due to an allegedly invalid deportation. Defendant contends that his October 4, 2007 conviction for first degree burglary in violation of California Penal Code §459 is not an aggravated felony and therefore he may collaterally attack the July 13, 2008 final order of removal. Plaintiff opposes the motion. For the reasons set forth below, the court denies the motion to dismiss the indictment.
On August 13, 2008 Border Patrol Agents responded to a sensor activation located on the Northeast corner of Barrett Lake and south of Camp Barrett Sheriff Department's Detention Facility. The area is known for alien smuggling activities. Upon arrival at the scene, agents discovered footprints and followed them.
As the Agents climbed the hill in the area, people started running through the thick brush. Over the next 20-30 minutes, the Agents rounded up 18 individuals. The Agents conducted a field immigration interview and all individuals, including Defendant, stated that they were in the country illegally. Defendant was transported to the Brown Field Border Patrol Station where he allegedly waived his Miranda rights and again stated that he was in the country illegally. On October 8, 2008 Defendant was indicted on a one count indictment charging him with being a deported alien found in the United States in violation of §1326(a) and (b).
The Administrative Removal of Defendant
On June 25, 2008 Defendant was interviewed by ICE Agent Valenzuela, a fluent Spanish speaker, while incarcerated at Calipatria State Prison. Defendant was serving a two year incarceration term for first degree residential burglary in violation of Cal Penal Code §459. Based upon this conviction, Agent Valenzuela determined that Defendant was an aggravated felon and therefore subject to administrative removal. At that time, Defendant represented that he did not oppose removal. Defendant was also advised that he or a colleague would return in a couple of weeks with paperwork on the administrative removal and provide a listing of legal services.
On July 10, 2008 Agent Lopez, also a fluent Spanish speaker, served Defendant with a "Notice of Intent to Issue a Final Administrative Order." The Notice indicated that Defendant had been convicted on October 4, 1997 for first degree residential burglary and received a two year prison term. The Form I-851 indicated that he was deportable as an aggravated felon pursuant to 8 U.S.C. §1101(a)(43)(F). Agent Lopez does not recall if Defendant requested to see an immigration judge. Agent Lopez explained the form to Defendant and that he was not eligible for relief from deportation because of the aggravated felony conviction. On July 16, 2008 Agent Lopez returned and served Defendant with the Final Administrative Removal Order. Agent Lopez believed that Defendant understood the administrative removal procedure and that he chose not to contest the Final Order. Defendant was removed on August 8, 2008.
In the past 10 years Defendant has two felony and two misdemeanor convictions. On August 26, 1999 Defendant was convicted of felony transportation of a controlled substance and sentenced to 180 days in jail and three years probation. On January 14, 2002 Defendant was convicted of two misdemeanors for (1) driving while intoxicated and (2) forging an official seal. On October 4, 2007 Defendant was convicted of first degree residential burglary in violation of Penal Code §459 and received a two year prison sentence.
Defendant contends that his conviction for first degree residential burglary in violation of Cal. Penal Code §459 does not correspond to the generic meaning of burglary as required by binding precedent and therefore his conviction is not an aggravated felony within the meaning of 8 U.S.C. §§1101(43)(F) and (G). As a consequence, Defendant moves to dismiss the indictment because he was not removable as charged in the removal order. The Government opposes the motion.
A defendant in a §1326 prosecution may collaterally attack the prior deportation before trial and preclude the government from relying on such deportation where"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 ...