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 Marcelo Gonzalez-Lopez. ECF No. 10.
On May 26, 1998, the Defendant was convicted of three counts of robbery pursuant to Cal Penal Code § 211 in the Los Angeles County Superior Court and sentence to serve a term of twelve years imprisonment.
On July 11, 2008, Defendant was served with a "Notice of Intent to Issue a Final Administrative Removal Order" charging that the Defendant was subject to expedited removal "because you have been convicted of an aggravated felony." ECF No. 10-2 at 8. The Notice of Intent alleged that the Defendant was a native and citizen of Mexico; that the Defendant entered the United States on May 10, 1997 near San Ysidro, California without being inspected, admitted or paroled by an Immigration Officer; that the Defendant was not lawfully admitted for permanent residence; and that the Defendant was convicted on May 26, 1998 in the California Superior Court of the County of Los Angeles of three counts of robbery in violation of Section 211 of the California Penal Code. Id. The Notice of Intent charged that "You are deportable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii), as amended, because you have been convicted of an aggravated felony as defined in section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F)." Id. The Notice of Intent further stated in part: "You may be represented (at no expense to the United States government) by counsel, authorized to practice in this proceeding. If you wish legal advice and cannot afford it, you may contact legal counsel from the list of available free legal services provided to you." Id.
On the same day, Defendant signed a Certificate of Service acknowledging that he had received the Notice of Intent to Issue a Final Administrative Removal Order. The Certificate of Service stated that the Notice of Intent was explained to the Defendant in the English language. Defendant checked a box on the Certificate of Service next to the statement "I Do Not Wish to Contest and/or Request Withholding of Removal." Id. Defendant checked a second box next to the statement "I admit the allegations and charge in this Notice of Intent. I admit that I am deportable and acknowledge that I am not eligible for any form of relief. I waive my right to rebut and contest the above charges. I do not wish to request withholding or deferral of removal. I wish to be removed to Mexico." Id. Defendant checked a third box next to the statement "I understand that I have the right to remain in the United States for 14 calendar days in order to apply for judicial review. I do not wish this opportunity. I waive this right." Id. Defendant signed his name under these boxes and statements, printed his name and dated the document July 11, 2008.
On July 15, 2008, a Final Administrative Removal Order was entered based upon the findings that the Defendant was "not a citizen or national of the United States, and that [he] was "not lawfully admitted for permanent residence." ECF No. 10-2 at 3. The Order finds that "the administrative record established by clear, convincing, and unequivocal evidence that you are deportable as an alien convicted of an aggravated felony pursuant to section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii)." Id. The Order finds that the Defendant was "ineligible for any relief from removal that the Secretary of Homeland Security, may grant in an exercise of discretion." Id.
On May 12, 2010, after the completion of his state prison term, the Defendant was physically removed from the United States to Mexico. ECF No. 10-2 at 6.
On June 8, 2010, Defendant was arrested in the United States.
On August 8, 2010, the grand jury returned an indictment charging that the Defendant was found in the United States without legally required permission after being previously removed in violation of Title 8, United States Code, Sections 1326 (a) and (b). ECF No. 1.
"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 Section 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." United States v. Becerril-Lopez, 541 F.3d 881, 886 (9th Cir. 2008). The Government has the burden to present evidence "to demonstrate that the procedural violation could not have changed the proceedings' outcome." United States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003).
CONTENTIONS OF THE PARTIES
Defendant contends that his administrative removal proceeding violated his due process rights because he does not speak English fluently and the Notice of Intent was not translated into the Spanish language. Defendant asserts that he was never informed of his right to counsel in the Spanish language. Defendant asserts that this violation of his due process right to counsel is inherently prejudicial and that the Court should presume prejudice. Defendant further asserts that he was ...