The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER PRECLUDING GOVERNMENT FROM RELYING ON MAY 1997 REMOVAL
Defendant Hamilton Silva-Vasquez ("defendant" or "Silva") is charged with violating 8 U.S.C. § 1326. The defendant moves to dismiss the indictment on the basis that his underlying deportation in May, 1997 was invalid. For the reasons explained below, the Court precludes the Government from relying on the May, 1997 removal.
The defendant initially entered the United States without inspection in either 1979 or 1982. In 1988, Silva first obtained temporary resident status. In 1989, he became a legal permanent resident.*fn1
On November 31, 1991, the defendant pleaded guilty to possession of an assault weapon under California Penal Code § 12280(b) ("Section 12280(b)").*fn2 (Mar. 13, 2009 Prior Conviction Documents, Certificate of Magistrate, Guilty Plea to Felony and Felony Complaint 1.) On October 17, 1996, the defendant was convicted of knowingly permitting the discharge of a firearm from a vehicle he was driving in violation of California Penal Code § 12034(b) ("Section 12034(b)"). (Mar. 11, 2009 Prior Conviction Documents, October 31, 1996 Abstract of Judgment.) He was sentenced to one year and four months in jail. (Id.)
On April 22, 1997, the Immigration and Naturalization Service ("INS") issued a Notice to Appear ("NTA") to Silva. (Mar. 11, 2009 Prior Conviction Documents, Notice to Appear.) The NTA alleged that the defendant was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(C) (1997) based on his conviction under Section12034(b) for a firearms offense. (Id.) On April 24, 1997, the INS lodged Additional Charges of Inadmissibility/Deportability against Silva. (Mar. 11, 2009 Prior Conviction Documents, Additional Charges of Inadmissibility/Deportability.) The INS deemed Silva further deportable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) (1997) because his Section 12034(b) offense constituted an aggravated felony in addition to a firearms offense. (Id.) On May 6, 1997, an Immigration Judge ("IJ") ordered the defendant deported to Mexico. (Def.'s Mem. of P. & A. In Support of Mot. to Dismiss, Deportation Proceedings 6.) His deportation order was allegedly later reinstated and Silva was ordered deported again on January 28, 2000 and May 9, 2003. (Mar. 10, 2009 Govt. Res. to Def.'s Mot. to Dismiss 3.)
On June 29, 2008, Silva applied for entry at the San Ysidro Port of Entry claiming to be a lawful permanent resident. (Feb. 23, 2009 Govt. Res. In Opp'n to Def.'s Mot. to Dismiss 2.) A record check revealed that he had been previously deported on May 9, 2003. (Id.) On July 23, 2008 Silva was indicted for attempted entry after deportation under 8 U.S.C. § 1326. (Id.) He now moves to dismiss the indictment.
Silva argues that the Court should dismiss the indictment because his underlying deportation was invalid. First, he claims that his due process rights were violated when he was denied the right to counsel at his removal proceedings. Specifically, Silva argues that his participation in a mass silent waiver of the right to counsel violated due process. Second, he contends that he was prejudiced by this due process violation because a lawyer would have advised him to seek various forms of relief for which he was plausibly eligible, including cancellation of removal, voluntary departure, and adjustment of status.
A defendant charged with illegal re-entry under 8 U.S.C. § 1326 has a Fifth Amendment right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047--48 (9th Cir. 2004). To sustain a collateral attack under 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. Id. at 1048. "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. Id. (quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998), cert. denied, 252 U.S. 849 (1998)). A defendant bears the burden of showing that he was prejudiced. United States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir. 1994; United States v. Gonzalez-Valerio, 342 F.3d 1051, 1056 (9th Cir. 2003).
An alien is barred from collaterally attacking his underlying removal order as a defense to a Section 1326 charge "if he validly waived the right to appeal that order during the deportation proceedings." United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001), cert. denied, 534 U.S. 879 (2001) (citations omitted). The exhaustion requirement of Section 1326(d), however, "cannot bar collateral review of a deportation proceeding when the waiver of [the] right to an administrative appeal did not comport with due process." Id. at 1183. A waiver of the right to appeal a removal order does not comport with due process when it is not "considered and intelligent." Id.
Silva alleges that the waiver of his right to appeal was not considered and intelligent because he participated in an invalid mass waiver of the right to counsel. The defendant further claims that an attorney would have advised him to appeal and seek relief from removal. The right to counsel in immigration proceedings is rooted in the Due Process Clause and codified at 8 U.S.C. § 1362 and 8 U.S.C. § 1229a(b)(4)(A). Biwot v. Gonzalez, 403 F.3d 1094, 1098 (9th Cir. 2005). "Although IJs may not be required to undertake Herculean efforts to afford the right to counsel, at a minimum they must (1) inquire whether the petitioner wishes counsel, (2) determine a reasonable period for obtaining counsel, and (3) assess whether any waiver of counsel is knowing and voluntary." Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008) (quoting Biwot, 403 F.3d at 1100).
At Silva's deportation hearing, the IJ jointly advised the group of aliens, including Silva, of their right to counsel. The IJ then asked the aliens, as a group, if any one of them had an attorney. (Def.'s Mem. of P. & A. In Support of Mot. to Dismiss, Deportation Proceedings 3.) When no one in the group raised his hand, the IJ proceeded to say "[i]f you want more time to get an attorney, raise your hand." (Id.) Again, when no person raised his hand, the IJ simply stated, "[s]o, we'll continue with you each representing yourself." (Id.) The IJ never individually evaluated whether Silva was waiving his right to counsel, and if so, if his waiver was knowing and voluntary. Moreover, the record does not indicate that the IJ explained any of the consequences of waiver of the right to counsel to the aliens. "[E]ven for the most competent alien, the IJ has an affirmative duty to assess whether any waiver of counsel is knowing and voluntary." Ram, 529 F.3d at 1242 (citation omitted).
The Ninth Circuit has found that mass waivers of the right to appeal in immigration proceedings do not comport with due process. United States v. Lopez-Vasquez, 1 F.3d 751, 754--755 (9th Cir. 1993). Furthermore, the Ninth Circuit has held that group silence does not demonstrate a knowing and intelligent waiver of the right to appeal, and it is not sufficient to comply with regulations requiring that an IJ direct aliens to state for the record whether they wish to waive counsel. United States v. Ahumada-Aguilar, 295 F.3d 943, 949--950 (9th Cir. 2002). The Court therefore finds that the record does not support a finding that the defendant waived counsel. Thus, his due process rights were violated when the IJ proceeded as if he waived his right to counsel through a mass silent waiver. See United States v. Garcia, 258 Fed.Appx. 962, 963 (9th Cir. 2007).
Because the exhaustion requirement does not apply to bar Silva's claim and his invalid waiver of counsel improperly deprived him of the opportunity for judicial review, the Court next considers whether the underlying removal order was fundamentally unfair.
Although the purported mass waiver of counsel violated the defendant's due process rights, "[p]rocedural flaws alone do not invalidate a deportation proceeding." AhumadaAguilar, 295 F.3d at 950 (citing United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 2002)). Rather, Silva must show the requisite level of prejudice to establish that his removal proceedings were fundamentally unfair. It remains unsettled in this Circuit whether a petitioner must show prejudice resulting from the denial of his right to counsel in an immigration proceeding. Id.; see also Balthazar-Alcazar v. I.N.S., 386 F.3d 940, 947 (9th Cir. 2004) (citations omitted). In evaluating prejudice in the context of the violation of the right to counsel in removal proceedings, however, the Ninth Circuit has required that the petitioner at least demonstrate that the IJ's conduct in denying a petitioner counsel "potentially affected the outcome of the proceedings." Balthazar-Alcazar, 386 F.3d at 947; Biwot, 403 F.3d at 1100; Ram, 529 F.3d at 1242.
Silva argues that the denial of his right to counsel potentially affected the outcome of his proceedings because he was plausibly eligible for relief. Had he been represented, the defendant claims that his lawyer would have counseled him to seek various forms of relief from removal. Specifically, Silva contends that he was eligible for cancellation of removal, voluntary departure, and adjustment of status.
The Government claims, however, that the defendant had no plausible grounds for relief because one or both of his prior convictions constituted aggravated felonies. A prior aggravated felony conviction precludes both cancellation of removal and voluntary departure. See 8 U.S.C. § 1229b(a)(3) and 8 U.S.C. § 1229c(b)(1)(C). The Court first considers whether either of Silva's prior convictions qualify as an aggravated felony. Because the Court finds below that neither conviction constitutes an aggravated felony, the Court next determines whether the defendant was plausibly eligible for relief.
Silva has two relevant convictions that the Government argues qualify as aggravated felonies: (1) his 1991 conviction for possession of an assault weapon under California Penal Code § 12280(b), and (2) his 1996 conviction for knowingly permitting an occupant to discharge a firearm from his vehicle under California Penal Code § 12034(b). In evaluating each conviction, the Court must employ the two-step test set forth in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2007). See Kawashima v. Mukasey, 530 F.3d 1111, 1114 (9th Cir. 2008). The Court first compares the elements of the statute under which the defendant was convicted to the relevant definition of an aggravated felony in 8 U.S.C. § 1101(a)(43). Id. "Under this categorical approach, an offense qualifies as an ...