The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the motion to dismiss the indictment based on an invalid deportation (Doc. # 12) filed by the Defendant Morgan Gonzalez.
Defendant is charged with attempted entry into the United States after deportation in violation of 8 U.S.C. § 1326.
On February 27, 1983, Defendant was born out of wedlock in Mexico to Mexican citizens Juan Gonzalez and Maria Ramirez. Defendant lived in Mexico with his mother. In 1996, at the age of thirteen, Defendant emigrated to the United States to live with his father in Oakland, California. In 1996, Defendant's father became a naturalized United States citizen.
Shortly before his eighteenth birthday, the Defendant applied for legal permanent residency from the Immigration and Naturalization Service. Defendant submitted all required documents for adjustment of status. On February 27, 2001, the Defendant reached the age of eighteen. On November 2, 2001, the Immigration and Naturalization Service approved the Defendant's application for adjustment of status and the Defendant was granted permanent legal residency.
On March 21, 2005, the Defendant was convicted of Sexual Battery on a Minor in violation of California Penal Code 243.4 in California Superior Court, Oakland County. Defendant received a sentence of 6 days imprisonment and 60 months probation. On December 5, 2006, Defendant's probation was revoked and Defendant was sentenced to one year imprisonment.
At the conclusion of his state sentence, federal immigration authorities commenced deportation proceedings based upon his prior state conviction. Defendant was represented by counsel in the immigration proceeding. Defendant asserted in the immigration proceeding that his prior state conviction did not constitute an aggravated felony, and that he was United States citizen. Defendant argued to the Immigration Judge that he was a United States citizen by birth out of wedlock pursuant to 8 U.S.C. § 1409, and as a derivative citizen pursuant the Child Citizenship Act of 2000, 8 U.S.C. § 1431. The Immigration Judge found that Defendant's prior conviction under § 243.4 was an aggravated felony; that 8 U.S.C. § 1409 was not applicable;*fn1 and that Defendant was not a derivative citizen under the Child Citizenship Act because this statute required an individual to be under the age of 18 on its effective date, and the Defendant turned 18 on the date the statute went into effect. The Immigration Judge ordered Defendant removed.
Counsel on behalf of the Defendant in the immigration proceeding, filed an appeal of the order of removal to the Board of Immigration Appeals. On January 24, 2008, the Board of Immigration Appeals affirmed the findings and conclusions of the Immigration Judge and dismissed the appeal.
On January 29, 2008, Defendant was deported to Mexico.
On January 30, 2008, counsel on behalf of the Defendant in the immigration proceeding, filed a notice of appeal from the order of removal in the Court of Appeals for the Ninth Circuit.
On May 27, 2008, while the appeal of the order of removal was pending in the Court of Appeals, Defendant was arrested on the charges in this case.
On January 22, 2009, the Court of Appeals issued a decision affirming the order of removal. Counsel on behalf of the Defendant in the immigration proceeding, subsequently received an ...