The opinion of the court was delivered by: Hayes, Judge:
The matter before the Court is the motion to dismiss indictment due to an invalid deportation (ECF No. 19) filed by the Defendant.*fn1
On January 30, 2002, at approximately age twenty, the Defendant became a legal permanent resident, through his mother. Defendant had lived in the U.S. for ten to twelve years prior to obtaining legal status. Defendant has six siblings, three are United States citizens and three are legal permanent residents.
On November 25, 2003, Defendant was stopped at the San Ysidro Port of Entry entering into the United States. Defendant was the driver of a vehicle with one passenger. Defendant was detained in immigration custody on allegations of false claim to United States citizenship and alien smuggling.
On December 23, 2003, the Immigration and Customs Enforcement issued a Notice to Appear for removal proceedings to the Defendant. The Notice to Appear stated that:
1. You are an arriving alien...
4. [You] are not a citizen or national of the United States;
5. [You] are a native of MEXICO and citizen of MEXICO;
6. On or about November 25, 2003 [you] made application for admission into the United States from Mexico, via the vehicle primary lanes of the San Ysidro Port of Entry, California and presented a California identification card claiming to be a United States citizen.
7. On or about November 25, 2003 [you] knowingly encouraged, induced, assisted, abetted, or aided a Mexican national CERVANTEZ Diaz, David, to enter or try to enter the United States, in violation of law.
On April 15, 2004, an immigration hearing was held. At the hearing, Defendant admitted that he was not a United States citizen and that he was a citizen of Mexico. Defendant denied the remaining allegations in the Notice to Appear. The Government presented evidence related to the allegations that the Defendant made false claim to United States citizenship and aided an illegal entry, including reports by the arresting officers, the transcript of the video recorded statement made by the Defendant at the time of his arrest, and a sworn statement taken from the alleged smuggled alien. Defendant testified that he had no prior arrests. Defendant testified that he was driving the vehicle as a favor for a friend, that his friend asked him to pick up his cousin for a family reunion, and that he asked the individual he picked up if he had documents. Defendant testified that he was not smuggling the individual across the border and that the individual showed him a green card prior to seeking entry. Defendant testified that the officer asked him if he was a United States citizen and that he responded "no" to the officer. Defendant testified that he showed the officer his California identification card and the green card from the passenger.
Defendant testified that he and the passenger were arrested and that he was informed that the passenger's green card was false. Defendant testified that at the time of his arrest, he told the officer that he had a resident card but that he had left it at home. Defendant was subsequently interviewed by another officer. Defendant testified at the immigration hearing that he told the second officer at the time of his arrest that he was "going to get paid $400 to bring the guy back." ECF No. 27 at 39. Defendant explained to the Immigration Judge that he was scared and did not know what to say to the officer. Defendant testified before the Immigration Judge that he was not smuggling the passenger across the border and that he did not claim to be a United States citizen at the time of his arrest. The Immigration Judge found the Defendant's testimony at the immigration hearing was not credible based upon inconsistent statement that the Defendant made to law enforcement at the time of his arrest and inconsistent statements made at the immigration hearing. The Immigration Judge found that the Defendant claimed to be a U.S. citizen and that he "knowingly assisted someone without lawful documents to enter the United States ...