The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS INDICTMENT Doc. No. 11
On February 10, 1998, Defendant, a Mexican citizen, pled guilty to one count of Taking of a Vehicle Without the Owner's Consent, Cal. Vehicle Code § 10851, and one count of Receiving Stolen Property, Cal. Penal Code § 496(a). (Doc. No. 12 at 2.) Defendant received a sentence of two years on the § 10851 count and a 365-day consecutive sentence on the § 496(a) count. (Doc. No. 12-2 at 4.) Following these convictions, Defendant, who had been a legal permanent resident, was ordered deported by an immigration judge ("IJ") on July 8, 1998. (Doc. No. 11 at 2.) On September 18, 2008, Defendant was arrested and charged with being found in the U.S. after deportation, in violation of 8 U.S.C. § 1326. (Doc. No. 12 at 2.)
Pending before the court is Defendant's motion to dismiss the indictment due to an invalid deportation. (Doc. No. 11, "Mot.") Defendant offers two separate arguments: 1) he was denied the right to counsel by the IJ's failure to inform him of that right and to obtain a valid waiver of that right; and 2) the § 10851 conviction on which his deportation was based was not an aggravated felony and thus, the IJ failed to properly advise him of his right to appeal or seek discretionary relief or obtain a waiver of those rights. The government opposes the motion. (Doc. No. 12, "Opp'n.")
Under the Due Process Clause of the Fifth Amendment, "'the validity of the deportation may be collaterally attacked'" in a criminal prosecution for violation of § 1326. U.S. v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001) (quoting U.S. v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000)). Section 1326(d) governs collateral attacks on deportations, requiring a defendant to show "(1) that he has exhausted all administrative remedies available to him to appeal his removal order, (2) that the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review, and (3) that the entry of the order was fundamentally unfair." U.S. v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2003).
Removal orders are fundamentally unfair when "(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. To establish prejudice, a defendant "does not have to show that he actually would have been granted relief. Instead, he must only show that he had a 'plausible' ground for relief from deportation." Muro-Inclan, 249 F.3d at 1184.
A. Fundamental Unfairness of the Deportation Order
1. Right to Appeal or Seek Relief from Removal
a. Conviction under Cal. Vehicle Code § 10851 -- Aggravated Felony?
In his primary argument, Defendant alleges he was incorrectly classified as an aggravated felon based on his § 10851 conviction during his deportation proceedings. Defendant suggests a violation of § 10851 is not a categorical aggravated felony, and thus, his rights to discretionary relief from removal or to appeal the deportation order were not foreclosed. According to Defendant, the IJ's failure to advise him of his appeal rights or obtain a valid waiver thereof constituted a due process violation.
Due process requires an IJ to inform a potential deportee in removal proceedings of his eligibility for any form of relief. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004). As Defendant received no advice from the IJ in this regard, the main issue is whether Defendant's § 10851 conviction rendered him an aggravated felon. The Ninth Circuit has expressly answered this question, employing the two-step categorical approach of Taylor v. U.S., 495 U.S. 575 (1990). U.S. v. Vidal, 504 F.3d 1072 (9th Cir. 2007). The en banc Vidal court analyzed § 10851 and determined a § 10851 conviction is not an aggravated felony because it is overly inclusive, applying not only to principals and accomplices but also to accessories after the fact. Id. at 1075.
Furthermore, as in Vidal, this court cannot employ the modified categorical approach to the present facts. The court's review under the modified approach is "limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard v. U.S., 544 U.S. 13, 16 (2005). Here, the criminal complaint and plea agreement both simply quote the statute. (Doc. No. 12-2 at 1, 5.) "[A]n indictment that merely recites the language of the statute...is insufficient to establish the offense as generic for purposes of a modified categorical analysis." Id., 504 F.3d at 1088 (citing U.S. v. Lopez-Montanez, 421 F.3d 926, 931 (9th Cir. 2005)). No plea ...