The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge
ORDER: (1) GRANTING MOTION FOR RECONSIDERATION; [Doc. No. 20] (2) DENYING MOTION TO DISMISS THE INDICTMENT; AND [Doc. No. 8] (3) DENYING AS MOOT MOTION TO STRIKE [Doc. No. 25]
Presently before the Court is Defendant Juan Roque-Polanco's motion for reconsideration of the Court's prior order denying his motion to withdraw the indictment. [Doc. No. 20.] For the reasons below, the Court GRANTS the motion for reconsideration, but again denies Defendant's motion to dismiss the indictment.
I. Facts Underlying Arrest*fn1
Defendant was arrested on October 8, 2011, approximately ten miles east of the Tecate Port of Entry near Tecate, California. Border Patrol agents found Defendant and two other individuals after encountering foot signs near the international border in a rural area, and then following those signs for approximately 50 minutes. Defendant admitted he was a citizen of Mexico and did not have paperwork allowing him to enter the United States.
II. Defendant's Criminal History
Defendant first moved to the United States in 1982, at the age of 21. [Doc. No. 8-2, Declaration of Juan Roque-Polanco ("Roque-Polanco Decl.") ¶ 1.] He married his wife, Sylvia Roque, in 2004, in Virginia, and remains married to her today. [Id. ¶ 2.] Ms. Roque is a natural-born United States citizen. [Id.]
Defendant was convicted in Texas on June 10, 1988 of "unlawfully, intentionally, and knowingly deliver[sic] by actual transfer more than one-fourth ounce and less than four ounces of marijuana." He received a two-year custodial sentence. [Doc. No. 9, Government's Exhibit 1, at 20-23.]*fn2 On May 6, 1992, also in Texas, defendant was convicted of burglary of a habitation with intent to commit theft. [Id. at 15-19.] He received a five year custodial sentence. [Id.]
III. Defendant's Prior Removals
Defendant was first ordered removed pursuant to an expedited order of removal on July 31, 2011. [Doc. No. 8-2, Roque-Polanco Decl. ¶¶ 3-4.] The removal was conducted in the area of Carrizo Springs, Texas, by Border Patrol Agent Fernando Martinez, Jr. [Id.; Doc. No. 12, Declaration of Border Patrol Agent Fernando Martinez, Jr. ("Agent Martinez Decl.") ¶ 2.] Defendant was subsequently removed from the United States in the Campo area of San Diego County on August 13, 2011, again pursuant to an expedited order of removal. [Doc. No. 8-2,
Roque-Polanco Decl. ¶¶ 3, 15.] This removal was performed by Border Patrol Agent Lawrence Smith. [Id.; Declaration of Border Patrol Agent Lawrence Smith ("Agent Smith Decl.") ¶ 1.]
IV. The Prior Proceedings in This Matter
On December 27, 2011, Defendant filed a motion to dismiss the indictment under 8 U.S.C. § 1326(d), arguing the underlying expedited removal proceedings were fundamentally unfair. [Doc. No. 8.] In his motion, Defendant argued his due process rights were violated because he was denied the opportunity to consult with counsel and because the Border Patrol Agents failed to comply with agency regulations. [Doc. No. 8-1 at 6-11; Doc. No. 13 at 3-8.] Defendant also argued that he was prejudiced by these violations because he had a plausible claim for relief. [Doc. No. 8-1 at 14-15.]
On February 1, 2012, the Court ruled in part on Defendant's motion to dismiss the indictment. [Doc. No. 15.] The Court rejected Defendant's argument that the agent's failure to advise Defendant that he had a right to consult with an attorney violated the Fifth Amendment. [Id. at 4-5.] However, the Court held that the agents did violate Defendant's due process rights by failing to recognize that they had the discretion to permit Defendant to withdraw his application for admission and depart immediately in lieu of expedited removal. [Id. at 6.] The Court deferred its ruling on whether Defendant was prejudiced by the due process violations and sought further briefing from the parties on the issue. [Id. at 9.] The Court also held that Defendant's 1992 conviction for residential burglary constituted an aggravated felony, but Defendant's 1988 marijuana conviction was not an aggravated felony. [Id. at 7-9.]
On February 13, 2012, the Court held a hearing on the issue of prejudice. [Doc. No. 18.] At the hearing, the Court held that Defendant was not prejudiced by the due process violations and denied Defendant's motion to dismiss the indictment. [Doc. No. 19 at 21:16-22:22] The Court explained that Defendant had failed to make a plausible showing that the Attorney General would exercise his discretion ...