The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
Defendant Cesar Martinez-Zavala (the "defendant" or "Martinez-Zavala") is charged with violating 8 U.S.C. § 1326. The defendant moves to dismiss the indictment on the basis that both his February 3, 2003 removal order and May 14, 2007 expedited removal order were invalid. For the reasons explained below, the Court GRANTS in part and DENIES in part the defendant's Motion to Dismiss the Indictment.
Martinez-Zavala was born in Tijuana, Baja California, Mexico on or about July 11, 1981. (Def.'s Mot. to Dismiss Indictment ("MTD"), Ex. N at 21.) He is a Mexican citizen. (Id. at 28.)
On September 25, 1999, immigration authorities placed an immigration hold on Martinez-Zavala and interviewed him. (Govt.'s Resp. to Def.'s MTD ("Govt.'s Resp."), Ex. 9 at 108.) Initially, Martinez-Zavala indicated that he wished to depart voluntarily to Mexico. (Id. at 109.) Upon learning that his mother had an approved I-130 petition on file with the Immigration and Naturalization Service, however, Martinez-Zavala appears to have changed his mind and decided not to depart voluntarily. (Id.) On October 12, 1999, a Notice to Appear was issued to Martinez-Zavala, charging him as an alien present in the United States who had not been admitted or paroled pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). (Govt.'s Resp., Ex. 11 at 119.) Martinez-Zavala then attended seven hearings related to his removal over the course of the next three years.
On October 21, 1999, Martinez-Zavala attended his first deportation proceeding, at which he requested a bond hearing. (Def.'s MTD, Ex. O at 3.) On October 22, 1999, an Immigration Judge granted Martinez-Zavala's request for bond and continued his master calendar hearing to November 12, 1999. (Govt.'s Resp., Ex. 11 at 124.)
On December 1, 1999, Martinez-Zavala attended his second hearing. His counsel indicated that he intended to apply for adjustment of status, cancellation of removal, or, "in the alternative," voluntary departure. (Def.'s MTD, Ex. P at 6.) The IJ continued the deportation proceedings to February 4, 2000. (Govt.'s Resp., Ex. 11 at 130.)
On February 4, 2000, Martinez-Zavala attended his third hearing. At this hearing, Martinez-Zavala's counsel informed the IJ that he had submitted applications for adjustment of status and cancellation of removal for his client. The Government indicated that it had not yet received records of Martinez-Zavala's prior convictions. The IJ set the next hearing for April 30, 2001. (Govt.'s Resp., Ex. 11 at 133.)
On March 5, 2001, an IJ granted Martinez-Zavala's counsel's motion to withdraw. (Govt.'s Resp., Ex. 14 at 159--165.)
On April 30, 2001, Martinez-Zavala attended his fourth hearing. He represented to the IJ that he was in the process of seeking new representation. (Def.'s MTD, Ex. R at 13.) The IJ then continued the hearing to October 26, 2001. (Govt.'s Resp., Ex. 11 at 135.)
On July 25, 2001, an immigration hold was placed on Martinez-Zavala after his arrest for various offenses. (Govt.'s Resp., Ex. 15 at 167.)
On October 26, 2001, Martinez-Zavala again appeared in front of an IJ. (Def.'s MTD, Ex. S at 16.) At that hearing, Martinez-Zavala indicated that he would like a continuance to seek representation. (Id. At 17.) The Government also informed the IJ that it was in the process of obtaining further conviction records. (Id.) The IJ set a master calendar hearing for May 15, 2002. (Id.)
On May 15, 2002, Martinez-Zavala appeared in front of an IJ without counsel. (Def. MTD, Ex. T at 20.) He informed the IJ that although he told his counsel about the proceeding, the attorney did not show up. (Id. at 20--21.) The IJ discussed with Martinez-Zavala an approved I-130 petition filed on his behalf. (Id. at 21.) Martinez-Zavala indicated that both his mother and wife had submitted I-130 petitions for him. (Id. at 21--22.) The IJ continued the hearing to July 10, 2002. (Id. at 25.)
On July 10, 2002, Martinez-Zavala appeared before an IJ, again without counsel. (Def.'s MTD, Ex. U at 27.) At that time, the IJ set a merits hearing ...