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 Martin Carreno-Juarez ("Defendant") has filed a motion to dismiss the Indictment due to an invalid deportation. For the reasons discussed below, Defendant's motion is DENIED.
Defendant, a citizen of Mexico, moved to the United States as a teenager. Defendant has a United States citizen wife in addition to two United States citizen children.
In 2004, Defendant was convicted of Accessory to Murder (Cal. Penal Code § 32) and False Imprisonment (Cal. Penal Code § 236). He was sentenced to three years in custody for the accessory to murder conviction and eight months in custody for the false imprisonment conviction.
On November 2, 2005, Defendant was ordered deported to Mexico and was physically removed that same day.
On June 16, 2008, border patrol agents discovered Defendant attempting to hide in brush about 10 miles north of the border.
Defendant seeks to invalidate his 2005 deportation pursuant to 8 U.S.C. § 1326(d). Defendant contends that the 2005 deportation was fundamentally unfair because the IJ erroneously informed him that he was ineligible for voluntary departure. Defendant also contends that his waiver of appeal was invalid due to the fact that the IJ misinformed him regarding his eligibility for voluntary departure. As discussed below, the Court denies Defendant's motion because the IJ in fact informed Defendant of the possibility of voluntary departure, Defendant was not eligible for voluntary departure in any case, and Defendant did not exhaust his administrative remedies.
A. Law Governing 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 process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects. Id.
An alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). However, the exhaustion requirement of 8 U.S.C. 1326(d) "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 (9th Cir. 2001). "[A] waiver is not considered and intelligent when the record contains an inference that the petitioner is eligible for relief from deportation, but the Immigration Judge fails to advise the alien of this possibility and give him the opportunity to develop the issue." Id. at 1182 (internal quotation marks omitted).
B. Application of Law to Facts of This Case
1. Alleged Failure to Advise Defendant of ...