The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT DUE TO INVALID DEPORTATION
Defendant Miguel Bravo-Romero has filed a motion to dismiss the indictment due to an invalid deportation. For the reasons discussed below, Defendant's motion is DENIED.
Defendant is a citizen of Mexico. On August 12, 1987, he was admitted into the United States as a lawful permanent resident. On March 18, 1988, Defendant was convicted of Attempted Murder with a Firearm in violation of Oregon Revised Statutes §§ 163.115, 161.405, and was sentenced to 20 years in prison.
On March 8, 1993, Defendant was ordered removed. However, this order was reversed by the BIA. Beginning on February 5, 1994, Defendant had several hearings before Immigration Judges Kenneth Josephson and Anna Ho. During the final hearing before Judge Ho on December 9, 1996, Defendant admitted that he was convicted of an aggravated felony. Judge Ho found that Defendant was deportable and was ineligible for 212(h) relief.
In a decision dated December 17, 1996, Judge Ho ordered that Defendant be deported to Mexico and that his request to file a 212(h) waiver be denied.
On September 29, 2000, Defendant was removed from the United States.
On October 5, 2007, Defendant was convicted of Forgery in violation of Cal. Penal Code § 470(D) and received a sentence of 16 months' imprisonment.
On November 9, 2007, Defendant's prior deportation order was reinstated and he was removed again.
On June 29, 2008, Defendant was arrested after a border patrol agent found him and two other aliens attempting to conceal themselves in some brush near the border.
Defendant seeks to invalidate his 1996 deportation order on multiple grounds. Defendant contends: (1) his due process rights were violated because the IJ erroneously found that Defendant was not eligible for 212(h) relief; (2) his due process rights were violated because the IJ failed to inform him of his eligibility for pre-conclusion voluntary departure; (3) he was denied his right to counsel during the deportation hearing; and (4) he was deprived of judicial review because he filed a timely notice of appeal that the BIA never took action on. As discussed below, none of Defendant's arguments are persuasive.
A. 1326(d) Collateral Attack
To sustain a collateral attack under 8 U.S.C. § 1326(d), a defendant must demonstrate that (1) he exhausted all administrative remedies available to him to appeal his removal order; (2) the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. United States v. Ubaldo-Figueroa, 364 F.3d 1047, 1048 (9th Cir. 2004). An underlying deportation order is "fundamentally unfair" if (1) the defendant's due ...