The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge
ORDER DENYING AMENDED MOTION TO DISMISS INDICTMENT DUE TO INVALID DEPORTATION
Defendant Bernardo Deleon-Torres ("Defendant") moves to dismiss the Indictment against him on the ground that his 2007 deportation was invalid. For the reasons discussed below, Defendant's motion to dismiss the Indictment is DENIED.
On September 22, 2010, a federal grand jury returned an Indictment charging Defendant with being a Deported Alien Found in the United States, in violation of 8 U.S.C. § 1326.
Defendant was previously deported in 2007. The Notice to Appear for the 2007 removal proceedings charged that Defendant was subject to removal pursuant to: (1) INA § 212(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled, or who arrived in the United States at anytime or place other than as designated by the Attorney General; and (2) INA § 212(a)(2)(A)(i)(II), as an alien who has been convicted of, or who admits having committed, or admits committing acts which constitute the essential elements of, a violation or a conspiracy or attempt to violate any law or regulation of a state, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substance Act, 21 U.S.C. 802). (Gov't Ex. 1.) In an order dated March 29, 2007, the Immigration Judge ("IJ") found Defendant subject to removal on the charges in the Notice to Appear. (Gov't Ex. 2.)
Defendant has a significant criminal record. In 2001, Defendant was convicted of child abuse in violation of Cal. Penal Code § 273a(a) and selling/furnishing a controlled narcotic substance in violation of Cal. Health & Safety Code § 11352(a). Defendant was sentenced to a four-year term of imprisonment. (Gov't Ex. 7.) In 2003, Defendant was convicted of inflicting corporal injury on a spouse/cohabitant in violation of Cal. Penal Code § 273.5(a), and was sentenced to two years in state prison. (Gov't Ex. 6.) In 2006, Defendant was convicted of receiving stolen property in violation of Cal. Penal Code § 496(a), and was sentenced to one year and four months in state prison. ( Gov't Ex. 5.) In 2009, Defendant was convicted of possession of a controlled substance for sale in violation of Cal. Health & Safety Code § 11378(a), and was sentenced to 36 months in prison. (Gov't Ex. 8.)
In his Amended Motion to Dismiss Indictment, Defendant Bernardo Deleon-Torres ("Defendant") contends that his 2007 deportation was invalid because the IJ failed to inform him of his eligibility for adjustment of status and a waiver under § 212(h). As discussed below, the Court finds that Defendant did not have a plausible claim for adjustment of status or a § 212(h) waiver and therefore did not suffer any prejudice as a result of the IJ's failure to inform him of such relief.
A. 1326(d) Collateral Attack
To sustain a collateral attack under 8 U.S.C. § 1326(d), a defendant must demonstrate 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) the entry of the order was fundamentally unfair. United States v. Ubaldo-Figueroa, 364 F.3d 1047, 1048 (9th Cir. 2004). An underlying deportation order is "fundamentally unfair" if (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. When the alleged defect in the deportation proceedings consists of the IJ's failure to inform the defendant regarding his possible eligibility for relief from deportation, in order to establish prejudice, the defendant must only show that he had a plausible ground for relief from deportation. United States v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998).
An alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). However, the exhaustion requirement of 8 U.S.C. 1326(d) "cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process." United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001). "[A] waiver is not considered and intelligent when the record contains an inference that the petitioner is eligible for relief from deportation, but the Immigration Judge fails to advise the alien of this possibility and give him the opportunity to develop the issue." Id. at 1182 (internal quotation marks omitted).
B. Eligibility for Relief 1. 212(h) Waiver Section 212(h) allows the Attorney General, in his discretion to waive the following five bases of inadmissability: (1) 8 U.S.C. § 1182(a)(2)(A)(i)(I) - a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime; (2) 8 U.S.C. § 1182(a)(2)(B) - conviction of 2 or more offenses (other than purely political offenses) for which the aggregate sentences to confinement were 5 years or more; (3) 8 U.S.C. § 1182(a)(2)(D) - coming to the United States solely, principally, or incidentally to engage in prostitution, or engaging in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status, or procuring or attempting to procure or to import prostitutes or persons for the purpose of prostitution, or receiving the proceeds of prostitution, or coming to the United States to engage in any other unlawful commercialized vice (whether or not related to prostitution); (4) 8 U.S.C. § 1182(a)(2)(E) - certain aliens who have committed a serious criminal offense in the United States and exercised immunity from criminal jurisdiction; and (5) 8 U.S.C. § 1182(a)(2)(A)(i)(II) - a single offense of simple possession of 30 grams or less of marijuana. 8 U.S.C. § 1182(h).
Defendant was found removable under (1) 8 U.S.C. § 1182(a)(6)(A)(i), for being an alien in the United States without admission or parole; and (2) 8 U.S.C. § 1182(a)(2)(A)(i)(II), for being an alien who has been convicted of, or who admits having committed, or admits committing acts which constitute the essential elements of, a violation or a conspiracy or attempt to violate any law or regulation of a state, the United States, or a foreign country relating to a controlled substance. The Notice to Appear alleges that on August 27, 2001, Defendant was convicted for the offense of Sell/Furnish Heroin in violation of Cal. Health & Safety Code § 11352(a). At the hearing, Defendant admitted that he was convicted on August 27, 2001, for selling or furnishing heroin, and was sentenced to confinement for a period of 4 years. (Amended Motion to Dismiss Indictment at 4:7-11.)
Section 212(h) does not provide relief for either of the grounds for Defendant's removal. Therefore, Defendant would not have qualified for § 212(h) relief and was not prejudiced by the IJ's failure to inform him of such relief. See United States v. Ramos, 623 F.3d 672, 684 (9th Cir. 2010) (holding that Ramos was ineligible for 212(h) relief because 212(h) does not provide relief for aliens removed for illegal ...