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United States v. Vasques-Diaz

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 11, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ANAEL VASQUES-DIAZ, DEFENDANT.

The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT FOR INVALID DEPORTATION Doc. No. 19

Pending before the court is Defendant's motion to dismiss his indictment under 8 U.S.C. § 1326 for an invalid deportation. (Doc. No. 19.) The government opposes the motion. (Doc. No. 21.)

Defendant argues his 1998 deportation was unlawful because the Immigration Judge did not advise him of the availability of Immigration and Naturalization Act ("INA") § 212(h) relief during his deportation proceedings.*fn1 (Doc. No. 19 at 2.) Defendant contends this error rendered his waiver of collateral attack on the underlying deportation invalid. (Doc. No. 19 at 4.)

Defendant's motion fails for several reasons. First, § 212(h) relief does not apply to Defendant's 1998 deportation under INA § 212(a)(7)(A)(i)(I), and thus, the Immigration Judge committed no procedural error. Second, Defendant conceded at oral argument that he had no evidence to show he would be entitled to section § 212(h) relief even if it had applied to his case. Third, Defendant fails to demonstrate any prejudice from the alleged procedural error. Defendant was removed on an expedited basis on three separate occasions between 2006 and 2008. Since these deportations followed Defendant's 2002 aggravated felony conviction, they are not subject to collateral attack and would satisfy the prior deportation element of 8 U.S.C. § 1326.

For the reasons set forth above, Defendant's motion to dismiss the indictment for invalid deportation is DENIED.

IT IS SO ORDERED.


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