The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the Motion to Dismiss the Indictment under 8 U.S.C. § 1326(d) filed by the Defendant Joel Vargas-Hernandez. ECF No. 17.
In September 1988, Defendant appeared before an Immigration Judge and was ordered removed to Mexico. Defendant was subsequently physically removed to Mexico pursuant to this order.
On May 5, 1995, Defendant sustained a conviction for first degree burglary in Orange County, California in violation of California Penal Code §§ 459-461. Defendant was sentenced to six years in prison for the burglary conviction and one additional year for a recidivist enhancement.
On December 31, 1998, an Immigration Judge entered an order of removal against Defendant after a immigration hearing. In the hearing, Defendant admitted that he had been convicted of first degree burglary in Orange County in 1995 and sentenced to seven years in prison. Based in part upon this admission, the Immigration Judge found that the Defendant had been convicted of an aggravated felony; that he was removable; and that no other form of relief was available.
CONTENTIONS OF THE PARTIES
Defendant asserts that he was removed when he should not have been. Defendant asserts that the California offense of first degree burglary categorically cannot constitute aggravated felony of "burglary" under 8 U.S.C. § 1101(a)(43)(G)*fn1 because it is missing an element of generic burglary. The Government asserts that the Defendant's conviction in 1995 first degree burglary conviction and sentence to seven years qualifies as an aggravated felony as a crime of violence under 8 U.S.C. § 1101(a)(43)(F)*fn2 as defined in Section 16(b) of Title 18. Defendant responds that his 1995 California first degree burglary offense does not categorically constitute a "crime of violence" under 8 U.S.C. § 16(b) because the state statute does not require unlawful or unprivileged entry. Defendant asserts that he was eligible for pre-conclusion voluntary departure and that it is plausible that he would have been granted pre-conclusion voluntary departure.
A defendant charged with a violation of Section 1326 may collaterally attack the prior deportation prior to trial under the due process clause. United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). 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).
The issue presented in this case is whether Defendant's 1995 California conviction for first degree burglary in 1995 categorically constitutes a "crime of violence" under 8 U.S.C. § 16(b).*fn3
A person commits first degree burglary only if he commits "burglary of an inhabited dwelling." Cal. Penal Code §460(a).*fn4 An inhabited dwelling house means "a structure where people ordinarily live and which is currently being used for dwelling purposes." People v. Rodriguez, 122 Cal. App.4th 121, 132 (Cal. App. 2 Dist. 2004) (citation and internal quotation marks omitted). A conviction for first-degree burglary under California Penal Code §§ 459 & 460(a) requires proof of three elements: 1) entry into a dwelling house; 2) that was inhabited at the time of entry; and 3) with the intent to commit larceny or a felony. People v. Anderson, 47 Cal.4th 92, 100 (2009).
In United States v. Becker, 919 F.2d 568 (9th Cir. 1990), the Court of Appeals held that the defendant's first degree burglary convictions under Cal Penal Code §§ 459-460 fit the statutory definition of a "crime of violence" as defined in 18 U.S.C. § 16(b). Becker had been found to be a career offender as defined in ...