The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS [Doc. No. 15]
On March 23, 2011, a grand jury returned a one-count Indictment charging Defendant Raul Edgardo Castro with Attempted Entry After Deportation in violation of 8 U.S.C. § 1326(a) and (b). The matter is currently before the Court on Defendant's Motion to Dismiss the Indictment. Defendant argues that his only prior order of deportation is invalid and thus the Indictment against him must be dismissed. For the following reasons, the Court DENIES Defendant's motion.
On May 18, 1999, Defendant was ordered deported on two grounds: (1) for having a drug trafficking conviction that qualified as an aggravated felony conviction and (2) for having a conviction involving a federally controlled substance. On this basis, an Immigration Judge ("IJ") informed Defendant that he was not eligible for any relief from removal. Defendant argues judicially noticeable conviction documents do not demonstrate sufficiently that he was convicted of either an aggravated felony or a controlled substance conviction, and he was therefore eligible for pre-conclusion voluntary departure. As such, Defendant argues the IJ erred by finding him deportable on both grounds, rendering his deportation fundamentally unfair.
To succeed on a collateral attack, a defendant must establish that: (1) he exhausted available administrative remedies; (2) the deportation proceedings deprived him of the opportunity for judicial review; and (3) the deportation order was "fundamentally unfair." 8 U.S.C. § 1326(d). A defendant need not fulfill the exhaustion requirement when an IJ fails to "inform him that he [is] eligible for relief from deportation." United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1049 (9th Cir. 2004). Additionally, an IJ's failure to inform a defendant of possible relief deprives him of the opportunity for judicial review. See United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 n. 2 (9th Cir. 2004). The entry of a removal order was "fundamentally unfair" if (1) the defendant's due process rights were violated by defects in the underlying deportation proceedings, and (2) he was prejudiced by those defects. Ubaldo-Figueroa, 364 F.3d at 1048 (citations omitted).
According to the judicially noticeable documents submitted by the government and the defense, Defendant was charged in a felony complaint with "possession of a controlled substance" in violation of California Health & Safety Code section 11350(a).*fn1 See Felony Complaint, Def. Ex. E; Possession of a controlled substance is not an aggravated felony for purposes of a deportation proceeding. See Lopez v. Gonzales, 127 S. Ct. 625, 629 (2006) (possession of a controlled substance, even if punished as a felony in the state system, is not a federal felony and so does not qualify as an aggravated felony in a deportation proceeding). However, at the time of his change of plea hearing, the prosecution requested that the court amend the complaint to charge Defendant with violation of California Health & Safety Code section 11352(a), which prohibits the transportation of, sale of, or offer to sell controlled substances. At the hearing, the court agreed to amend the complaint, and the complaint was altered by hand to reflect that Defendant was charged with 11352(a) rather than 11350(a). Thus, it is clear that Defendant was charged with, and pleaded guilty to, a transportation/sale/offer to sell charge, rather than just a mere possession charge.
This does not end the inquiry, however, because the Ninth Circuit has held that 11352(a) is overly broad, and thus the Court must engage in a modified categorical analysis in order to determine whether Defendant's felony conviction qualified as an "aggravated" felony. The term "aggravated felony" is defined at 8 U.S.C. § 1101(a)(43)(B) as "any illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924 of Title 18)." Id. Thus, in order to qualify as an aggravated felony, Defendant has to have been convicted of selling a controlled substance, rather than merely offering to sell or transporting it.
Here, the judicially noticeable facts and documentation in the record do not establish to the requisite degree of proof whether Defendant's conviction under California Health and Safety Code § 11352(a) was for sale or transportation of a controlled substance, and the IJ therefore erred in finding that his crime was an aggravated felony. See United States v. Rivera-Sanchez, 247 F.3d 905, 908 (9th Cir. 2001) (en banc) (a transportation conviction is not punishable under the Controlled Substances Act and therefore is not an aggravated felony). The felony complaint charged possession and was amended by hand only to change the charging statute, not the underlying facts or explanation of the charges. The abstract of judgment is ambiguous, noting that Defendant pleaded guilty to one count of "transport/sell narc. contrl subs." There is no signed guilty plea in the record, and the court took no factual basis at the change of plea hearing transcript. Furthermore, the transcript does not clearly and unequivocally demonstrate that Defendant pled guilty to the "sale" of a controlled substance. The prosecutor stated that Defendant was charged with "a violation of health and safety code section 11352, a felony, commonly known as sale of controlled substance which was cocaine." However, the court later inquired whether Defendant pleaded guilty to "the complaint as amended" which only reflected the change in the charging statute, not the nature of the violation, and still read on its face as a felony complaint for possession.
"The Government must prove by 'clear, unequivocal, and convincing evidence that the facts alleged as grounds of [removability] are true.'" Ruiz-Vidal v. Gonzales, 473 F.3d 1072, 1076 (9th Cir. 2007), quoting Gameros-Hernandez v. INS, 883 F.2d 839, 841 (9th Cir.1989). That the government has not met its burden of showing that Defendant's conviction qualifies as an aggravated felony necessarily invalidates the IJ's determination that Defendant was statutorily ineligible for pre-conclusion voluntary departure under Section 241(a)(2)(A)(iii) of the Immigration and Naturalization Act on the grounds that his Section 11352(a) conviction was an aggravated felony as defined in section 101(a)(43)(B) of the Act.
b) Controlled Substances Act
The felony complaint referenced above charged Defendant with possession, and later as amended, with either the sale, transportation, or offer to sell cocaine. Defendant argues that this evidence is not sufficient under controlling Ninth Circuit precedent to establish that ...