The opinion of the court was delivered by: Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS INDICTMENT Docket No. 13
Defendant Jose Armando Zavala-Zavala was indicted on December 21, 2011 of violations of 8 U.S.C. §1325 and §1326(a). He now moves to dismiss the indictment based on purported flaws in his deportation hearing. For the reasons stated below, the motion is DENIED.
Defendant was arrested in October 2011 near the Calexico port of entry. He admitted that he had no papers allowing him to legally enter the United States. The government's records show that Defendant was deported from the United States to Mexico on September 11, 2006, and that before the 2006 deportation Defendant had been apprehended in the United States and sent back to Mexico twenty-five times.
Defendant's motion is based solely on the alleged failure of the immigration judge ("IJ") to properly inform Defendant of his right to apply for voluntary departure. At the deportation hearing, Defendant admitted the government's allegations. Transcript, U.S. Ex. 6 ("Tr.") at 10. The IJ explained to all defendants that they might be eligible for a remedy that could allow them to avoid removal such as voluntary departure, asylum, adjustment of status, and cancellation of removal. Tr. at 3. He stated: "If you are eligible for any relief or remedy I will tell you and give you the chance to apply for it." Id.
The IJ asked Defendant whether he was the son of a U.S. citizen, if he had ever had immigration documents, if anyone had ever applied to immigrate him, if he had ever lived in the United States, or if he had family in the U.S. He answered "no" to all of the questions. Tr. at 9-10. He also stated that he was not afraid of persecution in Mexico and that he had never been to jail or prison. Tr. at 11. Soon after, the IJ asked if there was anything else he "ought to know," and Defendant once again said "no." Tr. at 13. Next, the IJ said:
You do appear to be eligible for voluntary departure, but you had it, well [sic] say functional equivalent, twenty-five times and violated everyone [sic] of them. So I will deny voluntary departure as a matter of discretion. And I'll order you removed to Mexico the country you chose. But you do not have to accept my decision. You can appeal. Do you want to appeal?
Again, Defendant answered "no," even after learning that declining to appeal would mean that the IJ's decision was final. Tr. at 13.
II. LEGAL STANDARD AND DISCUSSION
To collaterally attack a deportation under §1326(d), a defendant must demonstrate that (1) he exhausted all administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and that (3) the entry of the order was fundamentally unfair. 8 U.S.C. §1326(d). The underlying order will be found fundamentally unfair only if (1) the defendant's due process rights were violated by defects in the deportation proceeding, and (2) he suffered prejudice as a result of those defects. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). Defendant argues that he meets this standard because the IJ failed to allow him to apply for voluntary departure.
Ninth Circuit case law makes clear that defendants in immigration proceedings have due process rights to receive information concerning the right to apply for voluntary departure. United States v. Melendez-Castro, 671 F.3d 950 (9th Cir. 2012). The Melendez-Castro court explained that "[t]he Due Process Clause of the Fifth Amendment requires that an alien in immigration proceedings be 'made aware that he has a right to seek relief.'" Id. at 954 (citations omitted).
Because the existence of a due process right has been established, the court must determine whether Defendant's due process rights were violated by the IJ. Melendez-Castro stated that the due process right in this situation "includes providing an alien with the opportunity to apply for relief. An alien applying for such relief has a right to present evidence in support of the claim." Id. Defendant argues that because the IJ failed to advise him ...