The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT FOR INVALID DEPORTATION
On January 16, 2009, Defendant Alfredo Araujo-Hurtado filed a Motion to Dismiss the Indictment for Invalid Deportation; Defendant filed supplemental briefing on February 13, 2009. The Government opposes Defendant's motion and has filed a response and opposition. On February 2, 2009, the Court took the matter under submission. Having now fully considered the submissions of the parties and the relevant legal authorities, the Court will deny Defendant's motion for the reasons set forth below.
Defendant is charged with being a deported alien found in the United States in violation of 8 U.S.C. § 1326. In March 2001, Defendant was convicted of Robbery, in violation of California Penal Code §211. Following his time in custody he was deported. According to the Government, Defendant has been excluded, deported, and/or removed from the United States to Mexico on the following dates: (1) August 2, 2000; (2) November 3, 2002; (3) December 8, 2003; (4) February 24, 2005; (5) August 11, 2006; and (6) August 18, 2007.
Defendant contends that his prior deportations are invalid because he was never advised by an Immigration Judge that he is a United States citizen or that he has a claim to derivative citizenship. Defendant claims that he is an American citizen through double derivation.*fn1
According to Defendant, his grandfather, Jesus Araujo, is a United States citizen. His grandfather was born in Thornton, Texas on April 23, 1922, and has lived in the United States for his entire life. In December 1951, his grandfather married Anna Maria Perez, who is a Mexican citizen and Legal Permanent Resident of the United States. On August 1, 1960, Defendant's father, Alfredo Araujo Hurtado Sr., was born in Tijuana, Mexico. Defendant's father moved to the United States in 1970. On September 7, 1981, Defendant's father married his mother, Lilia Hurtado Gamez. On February 4, 1982, Defendant was born in Tijuana, Mexico. Defendant moved to the United States to live with his father in 1984, when he was 2 years old. According to the Government, neither Defendant, nor his father, have filed an N-600 seeking a Certificate of Citizenship.
A defendant in a § 1326 prosecution "has a Fifth Amendment right to collaterally attack a removal order because the removal order serves a predicate element of his conviction." United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). To succeed in a collateral challenge to a removal order, a defendant must demonstrate: "(1) that he exhausted all administrative remedies available to him to appeal his removal order, (2) that the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review, and (3) that the entry of the order was fundamentally unfair." Id. An underlying removal order is "fundamentally unfair" when: (1) the 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. Id.; United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000).
The Government argues Defendant's challenge is barred because he waived his right to appeal in both 2000 and 2005. An alien is barred under § 1326(d) from collaterally attacking his underlying removal order if he validly waived the right to appeal that order because he did not exhaust administrative remedies. United States v. Garza-Sanchez, 217 F.3d 806, 808 (9th Cir. 2000).
Here, neither party has provided the Court with a copy of the transcripts of the 2000 or 2005 deportation proceedings, so the Court is unable to determine precisely what was said or done during the hearings. However, the Court finds that the waiver of appeal indication on the face of both the February 24, 2005 Order of the Immigration Judge and the August 2, 2000 Order of the Immigration Judge is sufficient to establish a prima facie showing that Defendant validly waived his right to appeal the orders, particularly as the Court has been presented with no evidence that contradicts the existence or the validity of the waivers.
Nevertheless, the Court must consider whether Defendant's waiver was considered and intelligent. The exhaustion requirement "cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process." United States v. Muro-Inclan, 249 F.3d 1180, 1183-84 (9th Cir. 2001). Waiver of the right to appeal a removal order does not comport with due process if it was not "considered and intelligent." United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). Defendant contends that because he was not advised of his claim to derivative citizenship, he could not have executed a "considered and intelligent" waiver. Defendant asserts the mis-advisal excuses his failure to exhaust administrative remedies.
Immigration Judges are required to advise the alien of relief from removal if the alien's eligibility to apply for such relief was reasonably apparent from the record. Muro-Inclan, 249 F.3d at 1183-84. However, Immigration Judges "are not expected to be clairvoyant; the record before them must fairly raise the issue: 'Until the [alien] himself or some other person puts information before the judge that makes such eligibility 'apparent,' this duty does not come into play.'" Moran-Enriquez v. INS, 884 F.2d 420, 422 (9th Cir. 1989) (citing Bu Roe v. INS, 771 F.2d 1328, 1334 (9th Cir. 1985)).
Here, there is nothing in the record to suggest that Defendant's claim to double derivative citizenship would have been apparent to the Immigration Judge at the time of any of Defendant's deportation hearings. According to the Government, the audiotape of the 2005 deportation hearing reveals that Defendant stated neither he nor his parents were American citizens. Further, Defendant does not claim that he ever made the Immigration Judges aware of any facts that would have made his potential eligibility apparent. Indeed, it appears Defendant himself did not know of any basis for such a claim until recently. See Exhibit 3 Gov't Opp. ("Unfortunately for Alfredo, he has never before been advised that he derived citizenship from his dad. . . . Like his son, Alfredo Sr. had never before been advised he was a U.S. Citizen -- or, had any claim to U.S. Citizenship."). Therefore, the Court finds there was no due process violation in the Immigration ...