The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT DUE TO INVALID DEPORTATION
Defendant Misael Gonzalez has filed a motion to dismiss the indictment due to an invalid deportation. For the reasons discussed below, Defendant's motion is DENIED.
Defendant is a citizen of Mexico, who obtained legal residence in the United States as an agricultural worker in 2002. On January 8, 2002, Defendant pled guilty to sexual abuse of a minor under the age of fourteen in violation of Oregon Revised Statute ("ORS") § 163.427. Defendant was sentenced to a 28-month term of imprisonment.
On February 17, 2002, Defendant was served with a Notice to Appear, which charged that Defendant was deportable because he was convicted of an aggravated felony as defined in Section 101(a)(43)(A) of the Immigration and Nationality Act. (Def. Ex. C.)
On November 24, 2003, Defendant appeared before an Immigration Judge ("IJ") for removal proceedings. Defendant was not represented by an attorney. The IJ advised Defendant that he had the right to be represented by an attorney of his own choice and at his own expense and offered to continue the hearing so that Defendant could try to find an attorney. (Transcript of 11/24/03 hearing (Def. Ex. B) at 1.) Defendant declined the extension of time, explaining, "No, I want to leave as, as soon as possible." (Id.) After confirming that Defendant was a citizen of Mexico, Defendant's parents were not citizens of the United States, and Defendant was convicted in Oregon of the offense of sexual abuse in the first degree, the IJ found that Defendant was not eligible for any relief and ordered Defendant removed to Mexico. (Id. at 3-5.) The IJ asked Defendant whether he wised to reserve the right to appeal. Defendant responded, "I want to leave immediately," and "I don't want to appeal." (Id. at 5.)
On or about November 24, 2003, Defendant was removed to Mexico. Subsequent to his removal, Defendant reentered the United States and was removed to Mexico again in 2008 upon reinstatement of the removal order. On or about January 20, 2009, a U.S. Border Patrol Agent apprehended Defendant north of the border. On March 25, 2009, a grand jury in the Southern District of California returned a one-count Indictment, charging Defendant with illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b).
Defendant contends that the 2003 removal order was invalid because: (1) the IJ failed to inform Defendant of his eligibility for voluntary departure; and (2) Defendant's waiver of counsel during the removal proceedings was invalid. The Court rejects both of these arguments.
A. 1326(d) Collateral Attack
To sustain a collateral attack under 8 U.S.C. § 1326(d), a defendant must demonstrate that (1) he exhausted all administrative remedies available to him to appeal his removal order; (2) the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. United States v. Ubaldo-Figueroa, 364 F.3d 1047, 1048 (9th Cir. 2004). An underlying deportation order is "fundamentally unfair" if (1) the 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.
An alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). However, the exhaustion requirement of 8 U.S.C. 1326(d) "cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process." United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001). "[A] waiver is not considered and intelligent when the record contains an inference that the petitioner is eligible for relief from deportation, but the Immigration Judge fails to advise the alien of this possibility and give him the opportunity to develop the issue." Id. at 1182 (internal quotation marks omitted).
Defendant contends that his conviction for violating ORS § 163.427 does not constitute "sexual abuse of a minor" within the meaning of 8 U.S.C. § 1101(a)(43)(A). Therefore, Defendant argues, he was not convicted of an aggravated felony and was ...