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 Marco Contreras is charged with violating 8 U.S.C. § 1326. Defendant moves to dismiss the indictment on the basis that his underlying deportation in September, 2008 was invalid. For the reasons explained below, the Court DENIES Defendant's Motion.
Defendant was born in Mexico on July 2, 1985. He is a Mexican citizen. At the age of three, Defendant entered the United States illegally and moved to the Las Vegas, NV area with his family. Defendant attended U.S. schools during his childhood. Defendant is now married to a U. S. citizen with two U.S. citizen children. Defendant's mother is a lawful permanent resident.
Defendant's step-father, also a U.S. citizen, filed an I-130 Immigration Petition for Relative, Fiance(e), or Orphan on his behalf on or about March 20, 2003. Defendant became eligible for a visa when the petition was approved on or about May 19, 2004. Defendant's priority date was March 19, 2003.
On November 29, 2006, Defendant was convicted of felony robbery in violation of Nevada Revised Statute § 200.380 ("N.R.S. 200.380"). He was sentenced to two years in custody of the Nevada Department of Corrections.
On August 27, 2008, the Department of Homeland Security ("DHS") issued a Notice to Appear charging Defendant with having illegally entered the U.S. and committed a crime of moral turpitude. DHS agents apprehended Defendant that day and placed him in deportation proceedings. Defendant then signed a "Stipulated Request for Removal and Waiver of Hearing." Defendant alleges he was told that if he signed the form, he would be quickly returned to Mexico. He also claims that he did not read the entire form and did not understand its contents. By signing the form, Defendant admitted the facts included in the Notice to Appear and waived his right to a hearing in front of an Immigration Judge ("IJ").
On September 2, 2008, an IJ reviewed Defendant's sworn statement and the Notice to Appear and signed a written order of removal. The IJ's order did not indicate whether Defendant's waiver was knowing, voluntary, and intelligent.
On September 14, 2008, Defendant was arrested when he applied for entry at the Otay Mesa Port of Entry. Defendant was subsequently indicted for one count of attempted entry after deportation in violation of 8 U.S.C. § 1326, and one count of false claim of U.S. citizenship in violation of 18 U.S.C. § 911.
On January 16, 2009, Defendant filed a Motion to Dismiss Count One of the Indictment.
Defendant moves here to dismiss the first count of the indictment, arguing that his underlying deportation was invalid. Specifically, Defendant alleges that his due process rights were violated when the IJ failed to make a separate determination that Defendant's waiver of a hearing was voluntary, knowing, and intelligent. Defendant further argues that he suffered prejudice because the IJ failed to inform him of plausible grounds of relief. For the reasons explained below, the Court agrees that defects in Defendant's deportation proceedings violated his right to due process. Nevertheless, Defendant fails to sustain his collateral attack because he cannot demonstrate prejudice.
To sustain a collateral attack under 8 U.S.C. § 1326(d) ("Section 1326(d)"), a defendant must show 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) entry of the order was fundamentally unfair. "An underlying removal order is fundamentally unfair if (1) a 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. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998), cert. denied, 252 U.S. 849 (1998)). Defendant bears the burden of showing he was prejudiced. United States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir. 1994 (citation omitted); United States v. Gonzalez-Valerio, 342 F.3d 1051, 1056 (9th Cir. 2003).
The Government does not challenge Defendant's assertions that he has met the first two prongs required to sustain a collateral attack under Section 1326(d). The Court therefore directs its analysis to whether Defendant has sufficiently ...