The opinion of the court was delivered by: Hayes, Judge:
The matters before the Court are: 1) Defendant's Motion to Dismiss Indictment under 8 U.S.C.§1326(d) ECF No. 14; and 2) Defendant's Motion to Dismiss the Indictment on grounds that he is a citizen ECF No. 21.
Defendant was deported on April 11, 2006 and on November 22, 2006 after a hearing before an Immigration Judge. At each hearing, Defendant was advised of his right to counsel acknowledged and waived his right to counsel at the deportation hearing.
On November 9, 2010, Defendant was charged by the grand jury with Attempted Entry after Deportation in violation of 8 U.S.C. § 1326 (a) and (b).
Defendant's Motion to Dismiss Indictment under 8 U.S.C. § 1326(d)
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, 1048 (9th Cir. 2004).
Defendant moves the Court to dismiss the indictment on the grounds that he was not afforded counsel at his deportation hearing. Defendant recognizes that United States v. RiveraSillas, 417 F3d 1014 (9th Cir. 2005) controls but intends to preserve the issue for appeal. The Government contends that there was no due process violation in this case.
In United States v. Rivera-Sillas, 417 F.3d 1014 (9th Cir. 2005), the Court of Appeals concluded that the fact that a defendant charged with violating 8 U.S.C. § 1326 "had no counsel at his underlying deportation hearing creates no constitutional problem." Id. at 1018.
The Court of Appeals stated that "[a] defendant need not have had counsel at his underlying deportation hearing in order to be convicted and sentenced under 8 U.S.C. § 1326." Id. The Court concludes that there is no evidence of any due process violation in this case. Defendant's Motion to Dismiss the Indictment on grounds that he is a citizen Defendant contends that the indictment must be dismissed because he is a citizen under Section 320 of the Immigration and Naturalization Act ("INA"), 8 U.S.C. §1431, in the alternative, the Defendant requests sufficient time to process his N-600 application. Defendant asserts that the approval of an I-130 Petition on September 3, 2002 constitutes an application for admission and that he is a citizen under the Child Citizenship Act of 2000.
The Government asserts that the Defendant is not a citizen under Section 320 of the Act because he has never met the requirement in Section 1431(a)(3) for lawful permanent resident status. The Government contends that an I-130 is a preliminary application and notan application for lawful permanent residence or a completed certification of lawful permanent residency.
8 U.S.C. § 1431 states that
(a) A child born outside of the United States automatically becomes a citizen of the United States when all of the ...