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United States of America v. Francisco Javier Perez

August 5, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
FRANCISCO JAVIER PEREZ, DEFENDANT.



The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

REDACTED

ORDER GRANTING MOTION TO DISMISS INDICTMENT DUE TO INVALID DEPORTATION

Defendant Francisco Javier Perez ("Defendant") moves to dismiss the Indictment against him on the ground that his April 2011 deportation was invalid. For the reasons discussed below, Defendant's motion to dismiss the Indictment is GRANTED.

I. BACKGROUND

Defendant was born on August 10, 1992, and was brought to the United States in 2000 when he was eight years old. (Def. Decl. ¶ 2.) Defendant lived with his mother and step-father, neither of whom are United States citizens. (Id.) Defendant was educated in the United States and graduated from high school in the United States. (Id.) Defendant has worked in construction with his step-father. (Id.)

Defendant has been in a relationship with Yvette Estrella, a United States citizen, for three years. (Def. Decl. ¶ 3.) According to Defendant, they have discussed marriage. (Id.)

Defendant has had trouble with the law.

[ REDACTED ] On March 29, 2011, Defendant was convicted as an adult for driving without a license and was sentenced to 12 months' probation.

On March 31, 2011, a Notice to Appear ("NTA") was filed against Defendant. The NTA charged Defendant as being removable under 8 U.S.C. § 1182(a)(6)(A)(i) for "being an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General."

Defendant appeared before an Immigration Judge ("IJ") on April 21, 2011. Defendant was not represented by an attorney. The IJ did not advise Defendant of his eligibility for pre-conclusion voluntary departure. The IJ seemed to be sympathetic to Defendant, explaining: "I'm at a loss as to what he can apply for. Sir, I don't know what you can apply for is the problem. Sir, at this point I'm at a loss as to what you can apply for so I'm gonna order you removed to Mexico. It doesn't appear to be anything realistically in terms of your eligibility." (Def. Ex. B, pp. 5-6.)

The IJ ordered Defendant removed from the United States, and Defendant stated that he did not wish to appeal the IJ's decision. (Def. Ex. B, p. 6.) Defendant was physically removed to Mexico on or about April 25, 2011.

On April 29, 2011, Defendant was arrested near the Otay Mesa, California Port of Entry. On May 26, 2011, a grand jury returned a one-count indictment, charging Defendant with being a deportable alien found in the United States, in violation of 8 U.S.C. § 1326(a).

II. DISCUSSION

Defendant argues that his April 2011 deportation was invalid. Defendant's primary argument is that his due process rights were violated because the IJ failed to inform him of his eligibility for pre-conclusion voluntary departure under 8 U.S.C. § 1229c(a).*fn1 As discussed below, the Court finds that Defendant had a plausible claim for relief under 8 U.S.C. ยง 1229c(a). Therefore, the IJ's failure to ...


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