The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
Defendant is charged in a one count indictment with being a deported alien found in the United States, in violation of 8 U.S.C. 1326(a) and (b). Currently before the Court is Defendant's motion to dismiss the indictment on the basis that his prior deportation was invalid.
Defendant is a 31 year old Mexican citizen who entered the United States in 1996. On September 20, 2002, Defendant was ordered deported from the United States by an Immigration Judge ("IJ").
Defendant's criminal history includes: a January 2002 conviction for kidnaping a minor in Florida (sentence - 2 months jail); an October 2006 conviction for being a deported alien found in the United States (sentence - 5 months custody); and a February 2010 conviction for grand theft of account card (sentence - 240 days custody). According to Defendant's immigration history, he was removed from the United States to Mexico on September 27, 2002; November 6, 2006; and May 2, 2008.
On May 3, 2010, ICE agents encountered Defendant while he was in custody. On June 30, 2010, Defendant was indicted in this case.
Defendant argues the 2002 deportation is invalid because the IJ failed to adequately advise him that he was eligible for voluntary departure, and he did not knowingly and intelligently waive his rights to counsel or appeal. Defendant further argues that he suffered prejudice because he had plausible grounds for obtaining voluntary departure relief.
A defendant in a § 1326 prosecution "has a Fifth Amendment right to collaterally attack a removal order because the removal order serves a predicate element of his conviction." United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). To succeed in a collateral challenge to a removal order, a defendant must demonstrate: "(1) that he exhausted all administrative remedies available to him to appeal his removal order, (2) that the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review, and (3) that the entry of the order was fundamentally unfair." Id. A removal order is "fundamentally unfair" when: (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.; United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000).
An alien, however, is barred from collaterally attacking an underlying deportation order "if he validly waived the right to appeal that order" during the deportation proceedings. Arrieta, 224 F.3d at 1079. The Government must establish by clear and convincing evidence that the waiver was considered and intelligent. United States v. Pallares-Galan, 359 F.3d 1088, 1097 (9th Cir. 2004). If the IJ failed to inform Defendant of available relief from deportation, his waiver would not be considered and intelligent. Id. at 1096; United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001).
Defendant provided the Court with a transcript of the deportation hearing. According to the transcript, the following exchange occurred:
IJ: . . . The purpose of this hearing today is to determine whether you shall be sent home or allowed to stay in this country. During these proceedings you have certain rights. First of all you have the right to have an attorney represent you at no expense to the Government. At this time we are going to give you a copy of a legal aid list which is a list of attorneys in the area that may represent you for little or no fee. I also want you to understand that during the proceeding you may call witnesses. You may present documents or you may simply tell me anything in your own words. The Immigration Service is represented by the man at the next table. He may call witnesses and if so you may cross-examine those witnesses. He may present documents; you can examine the documents and objects to the admissibility. After I've heard all the evidence then I'll determine whether you shall be sent home or allowed to stay in this country. If ...