The opinion of the court was delivered by: Honorable Larryalanburns United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT ON THE BASIS OF INVALIDITY OF PRIOR DEPORTATION
This order supplements the Court's order from the bench, denying the motion of Defendant Jorge Farias under 8 U.S.C. § 1326(d) to dismiss the indictment for invalidity of the prior deportation. The current motion, docket number 87, renews and incorporates by reference the earlier motion, docket number 22, filed January 11, 2009, which the Court also denied.
In this collateral attack on his deportation, Mr. Farias bears the burden of showing he exhausted all administrative remedies available to him, the removal proceedings improperly deprived him of an opportunity for judicial review, and the entry of the order was fundamentally unfair. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). See also United States v. Hinojosa-Perez, 206 F.3d 832, 837 (9th Cir. 2000) (requiring defendant to prove he was not properly notified of deportation proceeding); United States v. Garcia-Martinez, 228 F.3d 956, 963 (9th Cir. 2000) (requiring defendant to demonstrate prejudice from alleged procedural defect in deportation proceeding). A "presumption of regularity" attaches to the deportation order, and Mr. Farias bears the burden of presenting evidence to overcome this presumption. Parke v. Raley, 506 U.S. 20, 29 (1992).
The motion summarizes the immigration proceedings Mr. Farias was subject to (Docket no. 22 at pages 1-4.) Farias was represented by attorney Bill Waddell, who in July, 1998, entered a notice of appearance as his attorney of record for "All Immigration Matters." (Ex. E.) The removal hearing was set and rescheduled several times, but the salient points are that both Mr. Waddell and the immigration judge used slightly wrong addresses, giving Farias' apartment number as either 211 or 214 instead of the correct number, 2H, although the remainder of the address was correct. Farias resided in that apartment with his mother and two siblings.
On a change of venue motion (Ex. K), seeking to have the removal proceedings held in San Diego, Mr. Farias says he wrote in the correct apartment number, but the order granting the change of venue repeated the wrong number. At the rescheduled removal hearing on October 7, 1998 in San Diego, Mr. Farias didn't show up. Mr. Waddell told the immigration judge he had tried to contact Mr. Farias and had mailed Farias a notice of the hearing, had sent messages to Farias' pager, and had contacted Farias' mother (who didn't know where Farias was), but to no avail. In support of the motion, Mr. Farias presents an affidavit that he never received notice of the hearing. The change of venue motion says Mr. Farias would concede removal but would apply for cancellation of removal.
Neither the original nor the renewed motion provides evidence of what was said at the removal hearing. It represents that Mr. Farias' then attorney, Mr. Fakhoury, had listened to a recording of the hearing, and could provide a transcript if needed but did not do so because of limited time. The renewed motion, filed over two and a half years later, does not provide a transcript nor was any evidence offered at the hearing, although it selectively quotes findings at the hearing.
Before Mr. Farias collaterally attacks his deportation, he must first have exhausted administrative remedies, including a direct appeal. § 1326(d)(1); United States v. Garza-Sanchez, 217 F.3d 806, 808 (9th Cir. 2000). He admits he hasn't exhausted remedies, but blames this on the lack of notice. Specifically, he argues:
Mr. Farias was not present at his removal proceeding and was thus unable to exhaust any administrative remedies. Under 8 U.S.C. § 1229a([b])(5)(C)(I), an alien seeking to reopen his in absentia removal must file a motion to reopen within 180 days of the removal order. Here, Mr. Farias was not informed of his removal from the United States until 2008. He simply could not file a motion to reopen at the time he learned of his removal from the United States. Additionally, as detailed below, Mr. Farias's did not "intelligently" waive his right to appeal because he was not present at his removal hearing and did not receive notice of his removal until 2008. Therefore, his failure to exhaust administrative remedies is excused.
The first problem with this argument is that it cuts off half the relevant subsection, misleadingly omitting entirely the provision that would apply in this case, and that has no time limit:
Such an order may be rescinded only--(I) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(1) of this section), or (ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a) of this title or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien.
(emphasis added). 8 U.S.C. § 1229a([b])(5)(C).
Mr. Farias' claim that the 180-day time limit was absolute even if he demonstrates he didn't receive proper notice is wrong. Under subsection (ii), Farias therefore could have sought rescission of the deportation order "at any time" on the same basis he's now attempting to use in this proceeding. His arguments about whether the deportation order should be rescinded should have been addressed to the Board of Immigration Appeals, not to this Court in the first instance. Furthermore, Mr. ...