The opinion of the court was delivered by: Hayes, Judge
The matters before the Court are the motion to dismiss the indictment due to invalid deportation filed by the Defendant Palomon Sanchez-Lara (Doc. # 21) and the motion to preclude Defendant's proffered expert testimony filed by Plaintiff United States of America (Doc. # 24).
Defendant came to the U.S. without permission in 1996 at approximately the age of seventeen. In 1999, Defendant was convicted of Infliction of Corporal Injury on Spouse or Cohabitant in violation of California Penal Code Section 273.5(a), a misdemeanor for which Defendant was initially sentenced to 30 days in jail and 36 months probation.
On January 17, 2003, Defendant was apprehended and taken into custody with a group of undocumented aliens in Douglas, Arizona.
On January 18, 2003, a Notice to Appear was served by the Immigration and Naturalization Service on the Defendant alleging that he is not a citizen of the United States; that he is a citizen of Mexico; that he arrived in the United States near Douglas, Arizona on January 17, 2003; and that he was not admitted or paroled after inspection by an Immigration Officer. (Doc. # 22, Exhibit 2). Defendant was detained in the custody of the Immigration and Naturalization Service at Florence, Arizona.
On January 23, 2003, the Defendant along with twenty-five other Respondents appeared at a hearing before an Immigration Judge. All respondents, including the Defendant, were informed by the Immigration Judge that the Government claims that they entered the United States illegally and that the Government has a right to deport them. (Doc. # 21-3, Exhibit B at 1). The Immigration Judge informed all Respondents that they had the right to counsel but at no expense to the Government, that they all should have received a copy of a list of lawyers who might help then for free, and that they would be taken back to Florence if they would like time to find an attorney. (Id. at 3). Defendant indicated that he did not want time to find an attorney. The transcript of the hearing states in part as follows:
Judge: In these proceedings, you all have the right to have an attorney, but at no expense to the government. And you all should have received a copy of the list of lawyers who might help you for free.
Respondents: [Speaking Spanish]
Interpreter: Yes, by all.
Judge: Alright, uh, if you would like some time to find an attorney, uh, I will give you time.
For example, if you, uh, tell me you would like time to find an attorney, the officers will take you back to Florence.
There are lawyers that will help you, uh, for free there. Uh, they are with the, uh, Immigrants Rights Project.
Uh, or you can choose your own lawyer.
And, the lawyers can help you with, uh, getting a bond or, uh, reducing a bond, or with any other matter in your immigration case.
Uh, if you tell me you, uh, do not want time to find an attorney, then you can speak for yourself and have your hearing today.
Alright, if you have a question about your right to an attorney, or how it works, ...