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 the Defendant Ernesto Uribe-Sanchez. ECF No. 11.
Defendant was born in Mexico in September 1971. In approximately 1976, Defendant entered the United States with his family. In June 1987, Defendant received a temporary resident card and in April 1989, Defendant adjusted his status to legal permanent resident.
On June 3, 1994, Defendant was convicted of violating Cal. Health & Safety Code § 11352(a) (the "June 1994 conviction"). Defendant received a sentence of 180 days in jail. Removal proceedings were initiated against the Defendant alleging that he was convicted on June 3, 1994 of a violation of Section 11352(a), an aggravated felony as defined in section 101(a)(43) of the Immigration and Nationality Act and a controlled substance offense as defined in Section 102 of the Controlled Substance Act.
On September 4, 1994, the Defendant appeared before an Immigration Judge. The Immigration Judge found that the Defendant was deportable on the grounds charged, and that he was not eligible for relief from deportation. At the conclusion of the hearing, the Immigration Judge ordered the Defendant deported to Mexico. Defendant timely appealed the order of deportation. The Board of Immigration Appeals affirmed the order of deportation stating that "[t]he record reflects that, despite the sympathetic factors the respondent details in his statement in support of the appeal, he is nevertheless statutorily ineligible for relief from deportation." ECF No. 11-2 at 32.
Defendant was subsequently ordered deported on August 1, 1995 and on August 24, 2005.
On May 5, 2010, the grand jury returned an indictment charging that the Defendant, who previously had been excluded, deported and removed from the United States to Mexico, was found in the United States without the express consent of the Attorney General of the United States or his designated successor in violation of 8 U.S.C. § 1326 (a) and (b).
CONTENTIONS OF THE PARTIES
Defendant contends that his prior deportations in September 1994, August 1995, and August 2005 are not valid and cannot form the basis for a conviction under 8 U.S.C. § 1326. Defendant asserts that his June 1994 conviction under Section 11352(a) was not an aggravated felony or a controlled substance offense and that the Immigration Judge improperly informed him that no relief from deportation was available.
The Government concedes that the June 1994 conviction under Section 11352(a) was not an aggravated felony but contends that the September 1994 deportation was valid on the grounds that the June 1994 conviction was a controlled substance offense. The Government states that it "will not rely upon the Defendant's 2005 deportation to sustain its burden of proof." ECF No. 17 at 3.
"In a criminal prosecution under § 1326, the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation." United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998). In order to sustain a collateral attack under § 1326(d), a defendant must, within constitutional limitations, 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. 8 U.S.C. § 1326(d). An underlying removal order is fundamentally unfair if: 1) an alien's due process rights were violated by defects in the underlying proceedings, and 2) he suffered prejudice as a result of the defects. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). To succeed on the prejudice prong of a claim of invalid deportation, Defendant "must still show that he had 'plausible' grounds for relief." ...