The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION OF RULING ON MOTION TO DISMISS INDICTMENT [Dkt. No. 45 ]
Presently before the court is Defendant Cesar Pulido-Estrada's Motion for Reconsideration of Ruling on Motion to Dismiss Indictment. Having considered the parties' submissions and heard oral argument, the court adopts the following order.
Defendant is a native and citizen of Mexico. (Mot., Exh. B at 2.) According to his application for Legal Permanent Resident ("LPR") status, Defendant entered the United States without a visa on January 7, 1977. (Opp., Exh. 4.) At that time, he was around four years old. (Opp., Exh. 4 (indicating that he was born in 1972). See also Mot. at 19 n.11.) He was granted LPR status on April 19, 1989. (Mot., Exh. A.) On March 12, 1997, Defendant was arraigned for the crimes of grand theft auto in violation of California Penal Code Section 487(D), unlawful driving or taking of a vehicle in violation of California Vehicle Code Section 10851(a), and dissuading a witness by force or threat in violation of California Penal Code Section 136.1(c)(1). (Mot., Exh. D.) On May 14, 1997, Defendant was convicted by plea of all three counts. (Mot., Exhs. E and F.)
On June 25, 1997, the U.S. Immigration and Naturalization Service ("INS") issued a Notice to Appear which alleged that Defendant was an LPR who had been convicted "for the offense of Grand Theft Auto, in violation of Section 487(D) of the California Health and Safety Code" and for that offense was sentenced to confinement for three years. (Mot., Exh. A.) The Notice charged Defendant as removable for having been "convicted of an aggravated felony as defined in section 101(a)(43) of the Act." (Id.)
On April 23, 1999, a hearing was conducted before an Immigration Judge ("IJ"). (Mot., Exh. B.*fn1 ) Defendant was asked if he understood his right to be represented by counsel and responded "Yes." (Id. 1:13-14.) When asked if he had counsel and if he wished for additional time to obtain counsel, Defendant responded "No." (Id. 1:15-18.) He also responded affirmatively when asked if he understood and had received written notice of his right to appeal. (Id. 1:23-26.) The IJ then asked Defendant if he understood the charges against him.
IJ: The charge in your case is you should be deported from the United States because at any time after admission, you've been convicted of an aggravated felony. An aggravated felony includes a theft offense for which the sentence is one year or more. Do you understand that charge?
IJ: And the government says that they handed the charge to you on April 20. Did the government hand you a copy of the charge on April 20?
IJ: And do you want to discuss your case today or a different date?
IJ: The government alleges that you are not a citizen or a national of the United States. They say you are a native or a citizen of Mexico. They adjusted your status to that of a permanent resident on April 19, 1989. They say that on May 14, 1997, you were convicted in Los Angeles of grand theft and sentenced for that offense to three years. Do you understand those allegations?
IJ: Are you a citizen or a national of the United States?
IJ: Are you a native and citizen of Mexico?
IJ: Are either of your parents U.S. citizens?
IJ: Were you admitted to the United States as a permanent resident on April 19, 1989?
Unidentified Voice: I'm sorry?
IJ: Okay. And on May 14,1997, were you convicted of grand theft and sentenced to three years?
IJ: If you were to be deported, to ...