The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge
DEFENDANT'S MOTION TO DISMISS[Doc. No. 12]
Presently before the Court is Defendant Victor Manuel Raya-Vaca's ("Defendant") motion to dismiss the information under § 1326(d). [Doc. No. 12, Def.'s Mot.] For the following reasons, the Court DENIES the motion.
Defendant alleges the following facts in his motion. Defendant first came to the United States twenty-five years ago when he was approximately six years old. [Doc. No. 12, Def.'s Mot. at 1-2.] He states that he has a common law wife who is a U.S. citizen, with whom he had lived for seven years, and two U.S. citizen children. [Id. at 2.] Defendant states that since 2009, he has been the subject of two orders of removal: a stipulated order of removal in 2009 and an expedited order of removal in 2011.
Because the Government in its opposition states that it "will not seek to satisfy the prior removal element of § 1326 offense [sic] by producing evidence of the 2009 Stipulated Removal Order" [Doc. No. 14, Govt.'s Opp. at 2 n.1], the Court does not address the facts and arguments related to the 2009 removal order.
Defendant alleges that in July 2011, he was the subject of expedited removal proceedings under 8 U.S.C. § 1225. [Doc. No. 12-1, Def.'s Mot. at 4.] He was interviewed by Border Patrol Agent Alberto Baca ("Agent Baca") on July 25, 2011. [Id.] Agent Baca charged Defendant with being inadmissible and removable from the United States, and subsequently ordered Defendant removed from the United States on July 25, 2011. [Id. at 4-5] Defendant alleges that "[d]uring this proceeding, noone [sic] explained to [Defendant] what was happening other than that he would be taken back to Mexico." [Id. at 4] He also alleges that he "was not advised of his right to consult with an attorney or his right to seek to withdraw his application for admission." [Id.] Defendant further alleges that he initialed and signed the forms that Agent Baca prepared, but was not given the opportunity to read these documents or his sworn statement, and that the forms indicate that Defendant was also not given the opportunity to read all of the pages of his sworn statement. [Id.] In the Notice and Order of Expedited Removal, Agent Baca asserted that Defendant illegally entered the United States without inspection near Tecate, California on July 24, 2011, and that he was removable under Immigration and Nationality Act ("INA") § 212(a)(7)(A)(i)(I) (8 U.S.C. § 1182(a)(7)(A)(i)(I)), as an alien who, at the time of his application for admission, was not in possession of a valid entry document. [Id. at 4-5.]
The Government presents the following information regarding Defendant's criminal history in its opposition brief. On February 2, 2003, Defendant was convicted of misdemeanor burglary in violation of California Penal Code § 459 and sentenced to ten days in jail and three years of probation. [Doc. No. 14, Govt.'s Opp. at 2-3.] On September 23, 2010, Defendant was convicted of Obstruction of a Police Officer in violation of Penal Code § 148(a)(1) and False Identification to a Police Officer in violation of Penal Code § 148.9(a). For these offenses, Defendant was sentenced to three days in jail and three years probation. [Id. at 3.]
The Government also states in its opposition brief that at the time of Defendant's expedited removal order in 2011, Defendant "had been apprehended and removed from the United States on six prior occasions: March 03, 2009; May 29, 2009; June 16, 2009; September 20, 2009; November 11, 2009; and September 21, 2010." [Id.] The Government states that on three of these occasions, Defendant "had been identified as a 'foot-guide' guiding aliens through the mountains as they made their way into the United States." [Id at 3-4; Doc. No. 14-1, Ex. at 4.]
I. Collateral Attack on a Removal Order
Because the underlying removal order serves as a predicate element of 8 U.S.C. § 1326, a defendant may collaterally attack the removal order under the due process clause. United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). In order to succeed in collaterally attacking an order of deportation under 8 U.S.C. § 1326, a defendant must demonstrate that: (1) "the alien exhausted any 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 the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d).
The Court first addresses the issue of fundamental unfairness. A removal order is "fundamentally unfair" if (a) the deportation proceedings violated the alien's due process rights and (b) the alien suffered prejudice as a result. ...