The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge
ORDER DENYING MOTIONS TO DISMISS COUNT ONE PURSUANT TO SECTION 1326(d)
Defendant Catarino Minero-Rojas ("Defendant") has filed motions to dismiss Count One of the Indictment pursuant to 8 U.S.C. § 1326(d) on the grounds that his 1997 removal order and 2002 and 2007 expedited removal orders are invalid. For the reasons discussed below, Defendant's motions are DENIED.
A. Immigration Background
Defendant, a citizen of Mexico, was born in 1958. Defendant resided in California as a legal permanent resident from 1970 until his deportation in 1997. His mother, Cecilia Rojas, was born in the United States and was a United States citizen. At the time of his deportation in 1997, Defendant had four United States citizen children and seven siblings who were legal permanent residents or United States citizens living in the United States. (Minero-Rojas Decl. (Def. App. K), ¶ 11.)
In 1997, Defendant was ordered to appear before an immigration judge to show why he should not be removed under INA § 237(a)(2)(B)(i) for having been convicted of violating a law or regulation of a state, the United States, or a foreign country relating to a controlled substance, other than a single offense involving possession for one's own use of 30 grams or less of marijuana. (Def. App. P.) At the deportation hearing on May 29, 1997, Defendant admitted that he had been convicted on June 26, 1995, of possession of cocaine. (Def. App. L at 76. ) The immigration judge ("IJ") ordered that Defendant be removed to Mexico. This removal order was subsequently reinstated several times.
In 2002 and 2007, Defendant was placed in expedited removal proceedings and ordered removed to Mexico. In 2002, he was found inadmissible because he falsely represented himself as a lawful permanent resident by presenting a counterfeit Form I-94. (Def. App. N.) In 2007, Defendant was found inadmissible for misrepresenting his identity and not having the necessary documents to enter the United States. (Def. App. S.)
On July 6, 2011, Defendant applied for admission from Mexico into the United States and was arrested. On July 27, 2011, an indictment was filed charging Defendant with three counts: (1) Attempted Entry after Deportation, in violation of 8 U.S.C. § 1326(a) and (b); (2) Fraud and Misuse of Visas, in violation of 18 U.S.C. § 1546(a); and (3) Aggravated Identity Theft, in violation 18 U.S.C. § 1028A.
Defendant has an extensive criminal history as set forth below.
APPROX. DATE CONVICTION SENTENCE OF ARREST Jan. 1977 misdemeanor drunk driving on 6 months of probation highway (Gov't Ex. 2, p. 20.) Jan. 1982 trespass - Cal. Penal Code § 602(j) 1 year probation
May 1984 petty theft - Cal. Penal Code § 5 days in jail 484(a) (Gov't Ex. 2, p. 21)
Jan. 1986 under the influence of cocaine - Cal. 90 days in jail Health & Safety Code § 11550(a) (Gov't Ex. 2 p. 21) June 1988 grand theft of property - Cal. Penal 90 days in jail, 180 days of Code § 487.1 probation (Gov't Ex. 2, p. 21) Oct. 1988 vandalism - Cal. Penal Code 594(a) 30 days in jail, probation terminated (Gov't Ex. 2, p. 21) Feb. 1989 use/under the influence of controlled 365 days in jail concurrent substance - Cal. Health & Safety (Gov't Ex. 2, p. 22; Gov't Code § 11550(a); felony driving Ex. 3) under the influence of alcohol or drugs - Cal. Veh. Code § 23152(a)
March 1992 first degree robbery - Cal. Penal 3 years in prison Code §§ 211 and 667.5(b) (Gov't Ex. 2, p. 22; Gov't (enhancement) Ex. 4) March 1995 possession of a controlled substance 32 months in prison (cocaine) - Cal. Health & Safety (Gov't Ex. 2, p. 23; Gov't Code §§ 11359(a) and 667.5(b) Ex. 5) August 1997 use/under the influence of controlled jail sentence of unknown substance - Cal. Health & Safety length Code § 11550(a) (Gov't Ex. 2, p. 23) Sept. 1998 possession of controlled substance 16 months in prison (cocaine) - Cal. Health & Safety (Gov't Ex 7) Code § 11350(a) Jan. 2001 corporal injury on a spouse - Cal. 4 years in prison Penal Code § 273.5(a) (Gov't Ex. 2, p. 24; Ex. 8) Aug. 2003 second degree commercial burglary 2 years in prison - Cal. Penal Code § 459 (Gov't Ex. 9) March 2004 possession of paraphernalia in 2 years in prison prison - Cal. Penal Code § 4573.6 (Gov't Ex. 6) May 2007 illegal entry - 8 U.S.C. § 1325 48 months in prison (Gov't Ex. 10)
Defendant contends that his 1997 removal order and 2002 and 2007 expedited removal orders are invalid due to various due process violations during the proceedings. As discussed below, the Court finds that any defects in the 1997, 2002, and 2007 proceedings did not result in prejudice to Defendant. Therefore, Defendant's collateral attack on the removal orders fails.
A. Law Governing 1326(d) Collateral Attacks
To sustain a collateral attack under 8 U.S.C. § 1326(d), a defendant must demonstrate that (1) he exhausted all administrative remedies available to him to appeal his removal order; (2) the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. United States v. Ubaldo-Figueroa, 364 F.3d 1047, 1048 (9th Cir. 2004). An underlying deportation order is "fundamentally unfair" if (1) the 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. Id. When the alleged defect in the deportation proceedings consists of the IJ's failure to inform the defendant regarding his possible eligibility for relief from deportation, in order to establish prejudice, the defendant must only show that he had a plausible ground for relief from deportation. United States v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998).
An alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). However, the exhaustion requirement of 8 U.S.C. 1326(d) "cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process." United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001). "[A] waiver is not considered and intelligent when the record contains an inference that the petitioner is eligible for relief from deportation, but the ...