The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the motion to dismiss the indictment due to invalid deportation filed by Defendant Ricardo Clemente-Ramos. (Doc.# 6).
Defendant is charged in one count indictment with attempted entry after deportation in violation of 8 U.S.C. § 1326 (a) and (b). Defendant moves the Court to dismiss the indictment against him on the grounds that his underlying deportation on December 8, 2008 was invalid.
On December 4, 2008, the Department of Homeland Security issued a Notice to Appear charging that the Defendant, a native and citizen of Mexico, was present in the United States without being admitted or paroled after inspection by an Immigration Officer. (Doc.# 6-3, Exhibit A). On that same day, Defendant signed a "Stipulated Request for Removal Order and Waiver of Hearing." (Doc.# 6-3, Exhibit C). In the Stipulated Request, the Defendant admitted all factual allegations of the Notice to Appear were true and correct, including: 1) he is not a citizen of the U.S., 2) he is a citizen of Mexico, and 3) he has not been admitted or paroled after inspection by an Immigration Officer. Defendant represented that he makes no claim to U.S. citizenship and agrees he is deportable. Defendant represented that he understands and expressly gives up and waives the following rights: 1) his right to a hearing before an Immigration Judge during which he would have the right to be represented by counsel at no expense to the U.S., 2) his right to apply for any and all relief from removal for which he might be eligible including any relief which may allow him to remain in the United States legally or permit him to depart voluntarily instead of by a formal order of removal, and 3) his right to appeal any adverse decision. Defendant chose Mexico as his country of designation for removal.
On December 8, 2008, the Immigration Judge entered an order of removal stating: "Upon consideration of the respondent's written representations as contained in the Request for a Stipulated Order of Removal, the Concurrence of the Department of Homeland Security Counsel, and the Certification of the Department of Homeland Security Government Official, I find that the respondent's waiver of hearing is voluntary, knowing, and intelligent based upon that evidence. The Court further finds that respondent is removable as charged ... it is Ordered that Respondent be removed from the United States to Mexico...." (Doc. # 6-3, Exhibit A). Pursuant to the Order of the Immigration Judge, Defendant was removed to Mexico.
On February 4, 2009, Defendant was again removed to Mexico based upon reinstatement of the December 8, 2008 deportation order.
On March 15, 2009, Defendant entered into a plea agreement in United States v. Clemente-Ramos, 09cr1009WQH. (Doc. # 8-1). Defendant agreed to enter a plea of guilty to a one count information charging that on or about February 19, 2009, Defendant violated 8 U.S.C. § 1326(a). In the plea agreement, Defendant agreed "[he]...was lawfully excluded, deported and removed from the United States to Mexico on December 8, 2008;" stipulated to an order of removal from the United States after he has served any criminal sentence; and waived "any right to appeal, reopen or challenge the removal order." (Doc. # 8-1 at 2).
On April 22, 2009, Defendant was removed to Mexico based upon a reinstatement of the December 8, 2008 deportation order.
On June 24, 2009, Defendant was arrested in this case and subsequently indicted by the grand jury.
Defendant contends that the December 8, 2008 stipulated deportation violated his due process rights. Defendant asserts that 1) the Immigration Judge did not independently determine that his waiver of rights was voluntary, knowing, and intelligent; 2) he did not knowingly and intelligently waive his right to counsel; and 3) the Immigration Judge failed to inform him that he was eligible for voluntary departure.
The Government contends Defendant waived any right to challenge the validity of the April 22, 2009 removal in the March 15, 2009 plea agreement. The Government asserts that the evidence demonstrates that Defendant knowingly and voluntarily waived his right to appeal or collaterally attack his April 22, 2009 removal and that the reinstatement of the prior deportation order may comply with due process regardless of whether the underlying December 8, 2008 deportation order complied with due process. The ...