The opinion of the court was delivered by: Hon. Roger T.Benitez United States District Judge
ORDER DENYING MOTION TO DISMISSINDICTMENT
Now before the Court is Defendant's Motion to Dismiss the Indictment Due to Invalid Deportation (filed April 26, 2011). This Court finds the underlying removal to be valid. Alternatively, this Court finds that even if the underlying removal proceedings were constitutionally flawed, Defendant has not shown that he suffered prejudice. Therefore, the motion to dismiss the indictment is denied.
Defendant is charged with being a Deported Alien Found in the United States in violation of 8 U.S.C. § 1326. The underlying deportation or removal took place in May 2010. There is no dispute as to the following salient facts.
Defendant is a citizen of Guatemala. In 1992, Defendant entered the United States as a legal permanent resident. Between 1998 and 2003, Defendant was convicted of three different crimes in California superior courts. In 1998, he was convicted of grand theft in violation of California Penal Code § 487(c). In 2001, he was convicted of forgery in violation of California Penal Code § 475(c). In 2003, he pleaded nolo contendere to forcible acts of sexual penetration in violation of California Penal Code § 289(a)(1). He was sentenced to three years in state prison.
On April 27, 2010, Defendant was issued a Notice to Appear by the Department of Homeland Security charging him as subject to removal for two reasons: (1) because of a conviction for an aggravated felony crime of violence based on 8 U.S.C. § 1227(a)(2)(A)(iii); (2) because of two convictions for crimes involving moral turpitude, based on 8 U.S.C. § 1227(a)(2)(A)(ii). In May 2010, following a hearing, Defendant was removed from the United States. On December 31, 2010, Defendant attempted to re-enter the United States.
II. CHALLENGING THE UNDERLYING REMOVAL ORDER
Defendant has moved to dismiss the indictment pursuant to 8 U.S.C. § 1326(d). He argues that his removal in May 2010 was fundamentally unfair and violated his right to due process. All individuals in the United States, including aliens, are protected by the Due Process Clause of the United States Constitution. United States v. Calderon-Segura, 512 F.3d 1104, 1107 (9th Cir. 2008), cert. denied, 129 S. Ct. 119 (2008). Due process in removal proceedings is guaranteed by the Fifth Amendment. Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008). Under § 1326(d), "an underlying removal order is fundamentally unfair if: (1) a 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." Calderon-Segura, 512 F.3d at 1107.
A. ALLEGEDLY DEFECTIVE REMOVAL PROCEEDINGS
Sandoval-Orellana asserts that his removal proceeding was fundamentally unfair. The mainspring of his argument is that none of his prior criminal convictions amounted to an "aggravated felony." This is important for two reasons. One, it was one of the two grounds charged for removability. If there was no "aggravated felony," then removal based upon § 237(a)(2)(A)(iii) of the INA would have been unsupported. If unsupported, then the removal would have been fundamentally unfair. If unfair, then it would not satisfy the prior deportation element for the current § 1326 charge.
Two, a conviction for an "aggravated felony" would have disqualified him from all three forms of discretionary relief from removal -- forms of relief for which Sandoval-Orellana asserts he was eligible to be considered. Since the Immigration Judge did not advise him of the availability of relief from removal at his removal hearing, the removal would have been fundamentally unfair if Sandoval-Orellana had qualified for relief. Again, if the removal was unfair on the second ground,*fn1 then it would likewise fail to satisfy the prior deportation element of the current § 1326 charge.
1. California Penal Code § 289(a)(1) Is an Aggravated Felony
The term "aggravated felony" is defined in the definition section of the INA found at § 101(a)(43), 8 U.S.C. § 1101(a)(43). In § 1101(a)(43)(F), an "aggravated felony" is defined as "a crime of violence" where the punishment is for a term of imprisonment of at least one year. The term "crime of violence" is further defined by reference to the federal criminal statues codified at 18 U.S.C. § 16. Title 18 U.S.C. § 16 defines a "crime of violence" as follows: The term "crime of violence" means --
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Sandoval-Orellana's prior conviction for violating California Penal Code § 289(a)(1) meets this definition. At the time of his conviction in 2003, § 289(a)(1) defined the crime as:
Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.
Whether Sandoval-Orellana's conviction for § 289(a)(1) is a "aggravated felony" under the INA requires looking at decisions in similar cases and resort to the categorical and modified categorical approach as set forth in Taylor v. United States, 495 U.S. 575, 600--02 (1990); Ramirez-Villalpando v. Holder, __ F.3d __, 2011 WL 2622389, *2 (9th Cir. 2011) (to determine whether a criminal offense qualifies as an aggravated felony, courts apply the categorical and modifiedcategorical approaches set out in Taylor).
There are no controlling decisions precisely on point. Only two decisions have considered California's § 289(a)(1): Espinoza-Morales, 621 F.3d 1141 (9th Cir. 2010) and Osmancevic v. Mukasey, Appeal No. 06-73147, 2008 WL 2699912 (9th Cir. July 9, 2008). Both are persuasive, but not determinative.
Osmancevic presents the closest set of facts. In Osmancevic, which the government relies on in its brief, the court found an alien to be removable because his prior conviction for § 289(a)(1) qualified as an "aggravated felony" "crime of violence" under § 1101(a)(43)(F) and 18 U.S.C. § 16. 2008 WL 2699912 at *3. The court noted that § 289(a)(1) is on California's list of violent felonies, and according to Lisbey v. Gonzales, 420 F.3d 930, 933 (9th Cir. 2005), cert. denied, 549 U.S. 868 (2006), when a state defines an offense as a "violent felony," a federal court may decide that the offense is a crime of violence under 18 U.S.C. § 16. Id. In addition, Osmancevic observed that § ...