The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS SECTION 1326 CHARGE
Pending before the court is Defendant Jose Luis Murguia-Marquez's ("Defendant") motion to dismiss two charges against him for attempted entry after deportation, in violation of 8 U.S.C. §§ 1326(a) and (b). (Doc. No. 10). Plaintiff United States of America ("the government") filed an opposition. (Doc. No. 12). The court heard oral argument regarding the motion on March 19, 2010. (See Doc. No. 19).
For the following reasons, the court hereby DENIES Defendant's motion to dismiss the section 1326 charges.
According to the indictment, Defendant was removed from the United States subsequent to September 24, 2007. On February 22, 2009, Defendant presented himself at the Otay Mesa port of entry and claimed to be a United States citizen in violation of 8 U.S.C. § 1326(a) and (b) (attempted entry after deportation) and 18 U.S.C. § 911 (false claim to citizenship). On July 27, 2009, Defendant presented himself at the Calexico port of entry with a fraudulent I-551 resident alien card in violation of 8 U.S.C. § 1326(a) and (b) (attempted entry after deportation) and 18 U.S.C. § 1546(a) (fraud and misuse of entry document).
For purposes of this motion, it is undisputed that Defendant faced deportation proceedings before an immigration judge in 2005. After two initial appearances, Defendant retained counsel to represent him in the deportation proceeding. After admitting removability, with the aid of counsel, Defendant applied for cancellation of removal pursuant to 8 U.S.C. § 1229b. The immigration court took testimony from Defendant regarding the equities of his case relevant to the discretionary application for cancellation of removal. Following testimony, the court issued an oral decision denying cancellation of removal. The immigration court never informed Defendant that he may be eligible for voluntary departure pursuant to 8 U.S.C. § 1229c(a). Defendant appealed the decision, which the Board of Immigration Appeals upheld. Defendant was ultimately removed.
To collaterally attack the prior deportation order, Defendant must comply with 8 U.S.C. § 1326(d). Therefore, Defendant must demonstrate that
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. § 1326(d). Entry of a deportation order is fundamentally unfair if the defendant's due process rights were violated and the defendant suffered prejudice as a result. United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004). To show prejudice, Defendant need only have had a "plausible" ground for relief. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000).
The parties agree that Defendant's deportation should be set aside if the entry of the deportation order was fundamentally unfair. See 8 U.S.C. § 1326(d)(3). Furthermore, as Defendant met the base statutory requirements for voluntary departure pursuant to 8 U.S.C. § 1229c(a), but was not informed of his eligibility by the immigration court, Defendant's immigration proceedings violated his Due Process rights. See United States v. Muro-Inclan, 249 F.3d 1180, 1183-84 (9th Cir. 2001). ...