The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT
Defendant Hernandez-Estrada has filed a motion to dismiss the indictment due to invalid deportation [Doc. 21]. For the following reasons, the Court DENIES the motion.
1. Defendant's Criminal History
Defendant has several criminal convictions in California. In February 1996 he was convicted of a felony violation of California Health and Safety Code § 11351.5, possession of cocaine base for sale, and his sentence was suspended on the condition that he serve 181 days in jail and 3 years probation. (Opp. Br., Ex. 1, at 1.) In May 2001, he was convicted of a felony violation of California Health and Safety Code § 11360, transportation of marijuana, and his sentence was again suspended on the condition that he serve 180 days in jail and 3 years probation. (Opp. Br., Ex. 2, at 7.) His probation was later revoked and in April 2006 he was sentenced to 365 days in jail. (See id. at 8.) In May 2006, he was convicted of a misdemeanor violation of California Vehicle Code § 23152(b), driving under the influence, and sentenced to 160 days in jail and 4 years probation. (Opp. Br., Ex. 3, at 14.) He was then convicted of a misdemeanor violation of California Vehicle Code § 14601.2(a), driving with a suspended license, and sentenced to 90 days jail. (See id. at 2.) Finally, in November 2008 he was convicted of a felony violation of California Penal Code § 417(b), exhibiting a loaded firearm, and sentenced to two years prison. (Opp. Br., Ex. 4, at 14.)
2. Defendant's Immigration History
On October 8, 2009, an immigration judge ("IJ") ordered Defendant to be deported to Mexico. At Defendant's deportation hearing, the IJ considered Defendant's eligibility for voluntary departure. (Def.'s Suppl. Exs. at 18.) In considering voluntary departure, the IJ said he would "weigh all the good against all the bad." After asking questions about Defendant's family and property in the United States, the IJ noted Defendant's conviction under § 417(b) of the California Penal Code. Defendant admitted to being convicted in November 2008 under that statute. (Id. at 17--19.) The conviction, according to the IJ, was an aggravated felony and a crime of violence. The IJ said, "I find that code section is categorically a crime of violence under section 16b of title 18 U.S. Code, so I must deny [voluntary departure]. You do not have to accept my decision." Defendant affirmed that he understood that he had the right to appeal but declined to do so. Defendant also said he understood that by not appealing, he would never be able to appeal. (Id. at 19.)
Defendant was then removed to Mexico. On December 9, 2009, the Border Patrol found Defendant in the United States near the Mexican border. Defendant has been charged with being found in the United States after removal in violation of 8 U.S.C. § 1326.
A defendant charged with a violation of 8 U.S.C. § 1326 has a Fifth Amendment right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047--48 (9th Cir. 2004). To sustain a collateral attack under Section 1326(d) a defendant must show 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) entry of the order was fundamentally unfair. Id. at 1048. "An underlying removal order is fundamentally unfair if (1) a 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. (quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998), cert. denied, 252 U.S. 849 (1998)). A defendant bears the burden of showing that he was prejudiced. United States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir. 1994; United States v. Gonzalez-Valerio, 342 F.3d 1051, 1056 (9th Cir. 2003).
1. Defendant Has Not Exhausted His Administrative Remedies
One of the requirements for collaterally attacking a removal order is that the defendant has exhausted his administrative remedies by appealing the order. United States v. Villaviciencio-Burruel, 608 F.3d 556, 559 (9th Cir. 2010) (citing 8 U.S.C. § 1326(d)(1)). A defendant who validly waives his right to appeal the removal order is barred from collaterally attacking it. United States v. Ubaldo-Figuerora, 364 F.3d 1042, 1048 (9th Cir. 2004). But if the waiver was not "considered and intelligent," then the waiver does not comport with due process and is invalid. Id. In order for a waiver to be considered and intelligent, the IJ must "expressly and personally inform the alien that he has the right to appeal." See id. at 1049.
In Ubaldo-Figuerora, which Defendant cites, the Ninth Circuit held that the defendant's waiver was not considered and intelligent because the IJ in that case "failed to inform [the defendant] that he had the right to appeal his removal order." Id. Although the IJ mentioned in English the right to appeal to the defendant's lawyer, it was not translated into Spanish for the defendant's benefit. The waiver was ...