The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
Defendant Jesus Pargas-Gonzalez is charged with attempted re-entry into the United States in violation of 8 U.S.C. § 1326. The Defendant has filed a motion to dismiss the indictment, claiming that his underlying deportation and removal violated his Fifth Amendment due process rights. For the reasons set forth herein, the Defendant's motion to dismiss the indictment is DENIED.
The Defendant is a citizen and native of Mexico and arrived in the United States with his father in 1989. In 1994, he became a legal permanent resident.
On May 13, 2003, the Defendant was convicted of violating California Penal Code § 459 (second-degree burglary). This constituted a felony conviction for which his probation was revoked and he was sentenced to 16 months in prison. On February 23, 2005, the Defendant was convicted of violating California Penal Code § 12021(a) (felon in possession of a firearm), for which he was sentenced to two years in prison.
On March 13, 2006, the Defendant was served a Notice to Appear ("NTA"), subsequently amended on March 21, 2006, alleging that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(C) for having been convicted of a "firearm offense."
On March 30, 2006, the Defendant appeared before an immigration judge ("IJ") and admitted that he had sustained the § 12021(a) conviction alleged in the NTA. The IJ explained the eligibility requirements for cancellation of removal, and the Defendant timely submitted a complete application for cancellation of removal.
At the merits hearing for the Defendant's application for cancellation of removal, the Immigration and Naturalization Service filed an additional charge, alleging that the Defendant was subject to deportation or removal on the ground that his § 12021(a) conviction constituted an "aggravated felony" pursuant to section 101(a)(43)(E) of the Immigration and Nationality Act. See 8 U.S.C. § 1101(a)(43)(E). The IJ asked the Defendant if he wanted more time to consult with an attorney. The Defendant stated that he wished to face the charges that day. The IJ concluded, without reference to any documents from the record of conviction, that the Defendant had committed an aggravated felony. On that basis, the IJ denied the Defendant's application for cancellation of removal and ordered the Defendant deported to Mexico.
The Defendant was arrested on July 3, 2011, at the Otay Mesa Port of Entry. On July 20, 2011, the government filed an indictment charging the Defendant with "knowingly and intentionally attempt[ing] to enter the United States of America with the purpose, i.e., the conscious desire, to enter . . . without the express consent of the Attorney General . . . , after having been previously excluded, deported and removed from the United States to Mexico" in violation of 8 U.S.C. § 1326. (Dkt No. 10 at 1.)
On October 11, 2011, the Defendant filed a motion to dismiss the indictment, contending that the removal order underlying the present charges is invalid because the IJ erred in determining that the Defendant's § 12021(a) conviction was an aggravated felony and that he was therefore ineligible for cancellation of removal.
Due process requires that a defendant charged with a violation of Section 1326 must have the right to raise a collateral attack against the prior deportation prior to trial. United States v. Pallares--Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). In order to sustain a collateral attack under § 1326(d), a defendant must demonstrate: (1) that he "exhausted any administrative remedies that may have been available to seek relief against the order;" (2) that "the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review;" and (3) that "the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). "[A] predicate removal order satisfies the condition of being fundamentally unfair for purposes of § 1326(d)(3) when the deportation proceeding violated the alien's due process rights and the alien suffered prejudice as a result." United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010).
A. Exhaustion and Opportunity for Judicial Review
With respect to the first two requirements in § 1326(d), the government contends that the Defendant has not exhausted his administrative remedies because he did not appeal his deportation to the Board of Immigration Appeals (BIA), and that he was not deprived of the opportunity for judicial review because he made a "considered and intelligent" waiver of his right to appeal. (Dkt. No. 21 at 8-9.) The ...