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 Omar Dominguez-Valencia is charged with attempted re-entry
into the United States in violation of 8 U.S.C. § 1326. Defendant has
filed a motion to dismiss the indictment (Doc. 43),*fn1
claiming that his underlying deportation and removal violated
his Fifth Amendment due process rights. For the reasons set forth
herein, Defendant's motion to dismiss the indictment is
Defendant legally entered the United States as an immigrant in 1971 at the age of 8. In 1989, he married Sandra Teresa Martinez, a United States citizen. Defendant and Ms. Martinez have two United States citizen children: Adrian Jacob Dominguez (born 1984), and Alexis Summer Dominguez (born 1993).
In October 1988, Defendant was convicted of second degree robbery in violation of California Penal Code § 211, for which he received a sentence of three years. On March 10, 1994, Defendant pleaded no contest to a violation of California Penal Code § 459 (first-degree burglary), and was sentenced to a term of two years, plus five consecutive years for a prior robbery enhancement under California Penal Code § 667.
On February 2, 1998, Defendant was served a Notice to Appear ("NTA") (amended February 11, 1998) charging that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an "aggravated felony" after admission.*fn2 Specifically, the NTA alleged that on March 10, 1994, Defendant was "convicted in the Superior Court of California, County of Los Angeles, for the offense of Burglary, in violation of Section 459 of the California Penal Code." (Doc. 43-2 (McMullen Decl.), Ex. B.)
At Defendant's deportation hearing, held on February 24, 1998, Defendant admitted to the immigration judge ("IJ") that "[o]n March 10, 1994, in Los Angeles, [he was] convicted of burglary[,]" for which he was "sentenced to seven years[.]" (Id., Ex. D ("Transcript") at 3.) On the basis of these admissions, the IJ sustained the charge in the NTA. (Id.)
The IJ explained to Defendant that, since he had entered the United States legally, he could apply directly to the immigration court for an adjustment of status rather than being deported. (Id. at 4.) The IJ explained that such application would be granted only if the IJ waived his convictions and found his U.S. citizen family would suffer "extreme hardship" if he was deported. (Id.) The IJ warned that the process could "take some time." (Id. at 6.)
The IJ also explained that, in the alternative, the IJ could order Defendant immediately deported, and Defendant could subsequently apply to the "immigration service" or the "American Embassy" in Mexico for an adjustment of status, but if Defendant chose that option then there would be "one more ground you'd have to get a waiver for and that's the deportation that you didn't have before." (Id. at 6.)
Defendant stated that he was experiencing medical problems for which he was receiving inadequate treatment in custody, and that as a result of his medical needs, he would choose immediate deportation. The IJ then asked Defendant if he wished to appeal the decision, or if he would accept it, "one or the other." Defendant chose to "accept." (Id.)
The IJ then ordered Defendant removed from the United States, and on that same day, February 24, 1998, Defendant was physically removed to Mexico. The removal order was reinstated in 2000, 2010, and 2011. (Defendant Br. at 8.) On March 1, 2011, a Border Patrol Agent sighted Defendant walking north from the international border fence approximately three miles west of the San Ysidro, CA Port of Entry and apprehended him.
Due process requires that a defendant charged with a violation of Section 1326 must have the right to raise a collateral attack against the underlying removal order 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), the 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).
Defendant alleges due process violations both in the IJ's determination that he was subject to removal and in the IJ's alleged failure to advise Defendant of an available form of relief. The Court addresses each argument in turn.
a. Defendant's claim that determination of removability violated due process
Defendant first argues that by "advis[ing Defendant] that proof of a violation of California Penal Code § 459 resulting in a sentence of more than one year establishes an aggravated felony[,]" the IJ violated Defendant's due process rights, since a violation of California Penal Code § 459 is not a categorical aggravated felony, and the immigration service did not offer any documentary evidence proving that Defendant's § 459 conviction was an aggravated felony under the modified categorical approach. (Defendant Br. at 11.)
As a threshold issue, the Court addresses whether Defendant's waiver of his right to appeal the removal proceedings (Transcript at 6) and failure to exhaust this issue foreclose the present challenge. Where a waiver of the right to appeal a removal order is not "considered and intelligent," the waiver and resulting failure to exhaust are excused. United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004). Defendant cites PallaresGalan for the broad proposition that "[a] waiver of the right to appeal is not 'considered and intelligent' if it is based on the immigration judge's erroneous advice to an unrepresented alien." (Defendant Br. at 9.) But Pallares-Galan's holding is much narrower:
Where the record contains an inference that the petitioner is eligible for relief from deportation, but the IJ fails to advise the alien of this possibility and give him the opportunity to develop the issue, we do not consider an alien's waiver of his right to appeal his deportation order to be "considered and intelligent."
359 F.3d at 1096 ((citation and quotation marks omitted)). Notwithstanding Defendant's artful characterization of the IJ's conclusion that "removability had been established" as "erroneous advice" (Defendant Br. at 18-19), the IJ's alleged failure to put the government to its proofs is not the same as a failure to advise Defendant regarding eligibility for relief for which the record suggests he is eligible. To hold otherwise would enable any § 1326 defendant challenging the IJ's determination of removability to overcome the exhaustion ...