The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the motion to dismiss indictment due to invalid deportation filed by the Defendant Ruben Alcazar-Bustos (Doc. # 11).
Defendant was born on May 14, 1987 and came to the U.S. without permission when he was two months old. Defendant lived with his parents in Modesto, California.
On February 6, 2003, at age fifteen, Defendant was convicted of burglary in the second degree and battery and received a sentence of 38 months probation and 45 days in juvenile hall.
In 2004, Defendant was convicted of taking a vehicle without the owner's consent and received a sentence of 180 days in juvenile hall.
In September 2005, Defendant married a United States citizen. Defendant's wife states in a declaration I married Ruben on September 2, 2005. Our son Ruben Jr. was born on June 14, 2006 in Modesto, California. One month later, Ruben turned himself in to start serving his prison sentence .
It is extremely difficult living without Ruben. He worked and was the one who provided most of the money we lived on. At the time we were living together, I only worked part time as a cashier. I primarily stayed home to take care of Ruben Jr.
After Ruben was sent to prison and then deported, I was forced to move back home with my parents because I could not afford to live in the apartment we shared together.
If I knew I could have applied for Ruben to come into the country legally, I would have. (Doc. # 11-3 at 6).
On July 5, 2006, Defendant was convicted of minor in possession of a concealed weapon in violation of California Penal Code and received a sentence of 3 years in prison. A state probation report prepared in September 2006 indicated that Defendant reported that he was employed from August 2005 until July of 2006 on a full time basis with his step father doing home remodeling. The probation report further indicated that Defendant was an admitted gang member and had been so for the last four years. (Doc. #12-2 at 5-6).
On October 20, 2006, at age nineteen, Defendant was convicted of unlawful possession of a firearm due to probation and received a sentence of 8 months in prison. In May 2007, while Defendant was in state custody, Immigration and Customs Enforcement placed an immigration detainer on the Defendant.
On June 5, 2008, a Notice to Appear was filed against the Defendant alleging that he was subject to removal on the grounds that he is a native of Mexico; not admitted or paroled into the United States; convicted of the offense of possession of a firearm by a minor; and sentenced to a term of three years.
In July 2008, Defendant was released from state custody to immigration detention in Imperial, California. On July 22, 2008, Defendant appeared before an Immigration Judge. Defendant waived an attorney and admitted the allegations in the Notice to Appear. During the hearing, the Immigration Judge concluded that the Defendant's conviction for possession of a firearm by a minor "would be a firearms offense that constitutes an aggravated felony." (Doc.# 11-3 at 17). The Immigration Judge found that the Defendant was not eligible for voluntary departure and that no other ...