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 Roberto Garcia-Olvera. ECF No. 11.
On December 1, 1990, Defendant became a lawful permanent resident of the United States.
On September 16, 1996, Defendant entered a plea of guilty to the following two charges: 1) Count 1 Unlawful Intercourse with a Minor in violation of Cal. Penal Code § 261.5(d) and 2) Count 2 Lewd Act Upon a Child 14 or 15 years of age in violation of Cal. Penal Code § 288c. The Plea of Guilty document and the Judgment included both charges. ECF No. 11-2 at 43. The Plea of Guilty document stated " I now plead guilty to the charges [Count 1- PC 3 261.5(d) and Count 2 - PC 3 288(c)] and admit that on the date charged I ... had sexual intercourse with a minor under the age of 16 years; and I committed a lewd act on a 15 year old and I was more than 10 years older than she."ECF No. 11-2 at 50.
On January 17, 1997, the Immigration and Naturalization Service initiated deportation proceedings against the Defendant. The Order to Show Cause alleged that "you were on September 16, 1996, convicted ... of the offense of LEWD ACT UPON A CHILD OF 14 or 15 YEARS OF AGE, committed between January 01, 1995 and April 30, 1996, in violation of Section 288(c) of the California Health and Safety Code." ECF No. 11-2 at 37.
On April 23, 1997, the Immigration Judge conducted a hearing. Defendant was represented by counsel. The Immigration Judge concluded that the "allegations set forth in the Order to Show Cause" were proven by clear and convincing evidence and constituted an aggravated felony under the law. ECF No. 11-2 at 22. The Immigration Judge further concluded that the Defendant was statutorily ineligible for Section 212(c) relief based upon this conviction. Defendant was ordered deported. Defendant appealed the order of deportation to the Board of Immigration Appeals. On May 26, 1998, the Board upheld the decision of the Immigration Judge. Defendant was removed in 2000.
On November 14, 2010, Defendant was arrested by the San Diego Police Department for failing to register as a sex offender.
On February 11, 2001, Defendant was transferred to immigration custody.
On March 29, 2011, the grand jury returned an indictment charging the Defendant with Deported Alien found in the United States in violation of 8 U.S.C. § 1326 (a) and (b).
CONTENTIONS OF THE PARTIES
Defendant asserts that the indictment must be dismissed on the grounds that he was not removable as charged. Defendant asserts that the offense of Lewd Act Upon a Child 14 or 15 years of age in violation of Cal. Penal Code § 288c was not an aggravated felony under the categorical or the modified categorical approach, and that he was eligible for relief, including relief under 212(c) of the Immigration and Naturalization Act. Defendant contends that his deportation was fundamentally unfair and cannot serve as a predicate act under 8 U.S.C. § 1326.
The Government asserts that the Defendant's conviction Lewd Act Upon a Child 14 or 15 years of age in violation of Cal. Penal Code § 288(c) was an aggravated felony at the time of the immigration hearing, that the Court may find the Section 228(c) charge was an aggravated felony under the modified categorical approach, and that the Court can find that the ...