The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT
Defendant Victor Cervantes-Martinez moves to dismiss the indictment charging him with being a deported alien found in the United States in violation of 8 U.S.C. §§1326(a) and (b). Pursuant to 8 U.S.C. §1326(d), Defendant challenges the validity of his 1984 and 1991 deportation hearings. The Government opposes the motion. Having carefully considered the moving papers, the court record, appropriate legal authorities, and the arguments of counsel, the court denies the motion to dismiss the indictment.
On September 15, 2010 at around 6:00 p.m. Defendant was observed via remote camera climbing the border fence from Mexico, about 1/2 mile from the Calexico Port of Entry. Border Patrol Agent Pinto then saw Defendant running into a home located at 92 E. First Street, Unit B. The Agents knocked repeatedly on the door but no one responded. On September 16, 2010, at 6:30 a.m., the residents of the home returned and allowed the agents to search the residence. Defendant was found hiding in the home. Defendant was placed under arrest. He admitted to being a citizen of Mexico without legal right to enter the country.
A records check revealed that Defendant had an extensive immigration and criminal history. Even though Defendant entered the United States at age three in 1967, he never obtained permanent legal resident status.
Criminal Convictions: From June 17, 1985 through March 4, 2003 Defendant was convicted of ten state law misdemeanors ranging from disturbing the peace and defacing with paint convictions as a 20 year old to DUIs, possession of a hypodermic syringe, and battery convictions as an adult. Defendant has three felony controlled substance convictions, (one in 1986 and two in 1989). Defendant also has a January 2008 conviction for being a felon in possession of a firearm. (Oppo. at p.3:12 - 7:13).
Immigration History: On May 21, 1991 Defendant was convicted in the Eastern District of California of eluding examination, a misdemeanor, and sentenced to six months custody. On August 8, 1993 Defendant was convicted in the Central District of California of felony illegal re-entry and sentenced to 83 months' custody. On July 16, 2008 Defendant was convicted in the District of Oregon of being a deported alien found in the United States and sentenced to 36 months.
Defendant was also ordered deported by an Immigration Judge ("IJ") on March 20, 1984 and again on April 4, 1991. Defendant was ordered deported by a field office director on January 15, 2008. Defendant was also physically deported from the United States to Mexico on March 20, 1984, October 18, 1991, December 22, 1998, July 30, 2002, March 9, 2004 and August 10, 2010.
The present motion to dismiss the indictment challenges the validity of the Removal Orders entered against Defendant on March 20, 1984 and April 4, 1991.
THE MOTION TO DISMISS THE INDICTMENT
A defendant in a §1326 prosecution may collaterally attack the prior deportation before trial and preclude the government from relying on such deportation only "if the deportation proceeding was so procedurally flawed that it effectively eliminated the right of an alien to obtain judicial review. . . ." United States v. Alvarado-Delgado, 98 F.3d 492, 493 (9th Cir. 1996), cert. denied, 117 S.Ct. 1096 (1997). The collateral attack of a prior deportation is statutorily permitted only if:
(1) the alien has exhausted any administrative remedies that may have been available to seek relief against the order,
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity to ...