The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS DUE TO INVALID DEPORTATION
On September 12, 2011, Defendant Armando Cabrera-Perez filed a Motion to Dismiss the Superseding Indictment due to Invalid Deportation (Dkt. No. 18). For the reasons set forth herein, Defendant's motion is DENIED.
Defendant entered a plea agreement on April 2, 2004, in which he agreed to plead guilty to two violations of Arizona Revised Statutes ("A.R.S.") § 13-1203 and § 13-1204. Defendant was sentenced to twelve months in jail and four years of probation. On February 9, 2005, an immigration judge ("IJ") entered a removal order against Defendant. The removal order was reinstated on January 4, 2011. On May 8, 2011, Defendant attempted to re-enter the United States in violation of the removal order, and was arrested. On July 27, 2011, a grand jury returned a single-count indictment charging the Defendant with attempting to re-enter the United States in violation of 8 U.S.C. § 1326. On August 3, 2011, a grand jury returned a superseding indictment adding a charge of aggravated identity theft, in violation of 18 U.S.C. § 1028A.
On September 12, 2011, Defendant filed a "Motion to Dismiss the Superseding Indictment due to Invalid Deportation" (Dkt. No. 18), claiming that the underlying removal order is invalid because the IJ failed to adequately advise Defendant of his eligibility for voluntary departure during the removal proceedings in 2005. In a supplemental brief filed on October 28, 2011 (Dkt. No. 29), Defendant added two additional arguments: first, that the IJ actually ordered voluntary departure and that the Order of Removal does not adequately represent the actual proceedings; and second, that the IJ failed to advise Defendant that he was eligible for cancellation of removal under § 240A(b) of the I.N.A. and waiver of removal under § 212(h) of the I.N.A. At the November 4, 2011 hearing, Defendant withdrew his § 212(h) waiver argument.
The Court first addresses, as a threshold issue, Defendant's argument that the IJ actually ordered voluntary departure rather than removal. Pursuant to 8 U.S.C. § 1326(a)(1), the Government must show that Defendant "has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding[.]" Despite the inclusion in the record of this case of the signed February 9, 2005 removal order (Dkt. No. 18, Ex. A), Defendant contends that the substance of the removal proceedings establishes that he was in fact voluntarily departed, rather than removed. Given the undisputed existence of a signed removal order, the Court is unwilling to grant Defendant's motion to dismiss based on his contention that he was not actually removed.
The Court next addresses Defendant's argument that the underlying removal order was invalid due to the IJ's failure to adequately advise Defendant of his right to voluntary departure. To challenge the underlying removal order in a § 1326 proceeding, a defendant must show that (a) he exhausted any administrative remedies available to seek relief against the order; (b) the underlying removal proceedings at which the order was issued deprived him of the opportunity for judicial review; and (c) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d). To establish that his removal order was "fundamentally unfair," the Defendant must show that his "due process rights were violated by defects in the underlying deportation proceeding, and . . . he suffered prejudice as a result of those defects." United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir. 2004) (emphasis added) (citation and quotation marks omitted). The Government argues that Defendant suffered no prejudice from the IJ's alleged failure to advise Defendant of his eligibility for voluntary departure because Defendant's prior Arizona felony convictions rendered him ineligible for such relief. The Court agrees, and therefore does not reach the issue of whether the IJ failed to advise Defendant sufficiently regarding his right to voluntary departure.
"An alien may be granted voluntary departure by an immigration judge . . . only if the alien . . . [h]as not been convicted of a crime described in section 101(a)(43) of the [I.N.A.] . . . ." 8 C.F.R. § 1240.26. Section 101(a)(43) includes "crime[s] of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment is at least one year[.]" 8 U.S.C. § 1101(a)(43)(F). 18 U.S.C. § 16 in turn defines a crime of violence as:
(a) an offense that has an element of the use, attempted use, or threatened us of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 16. Defendant is ineligible for voluntary departure because his convictions under A.R.S. §§ 13-1203 and 13-1204 were for "crime[s] of violence" within the meaning 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16.
In reaching this conclusion, the Court applies the analytical framework articulated by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990). First, the Court uses the categorical approach and determines whether the state statutes at issue--in this case, A.R.S. §§ 13-1203 and 13-1204--encompass offenses that are narrower than or equal to the federal definition of "crime[s] of violence." If so, a conviction under the state statutes necessarily implies that the conviction is for a crime of violence, and the inquiry is over. If, however, the state statute punishes conduct not included in the federal definition of "crime[s] of violence," the modified categorical approach permits an examination of the "record of conviction" to determine if the defendant was convicted of the generically defined crime. The "record of conviction" is limited to "the statutory definition, charging document, written plea ...