The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER DENYING MOTION TO DISMISS INDICTMENT
Defendant Gustavo Garcia-Gonzalez ("Defendant") moves to dismiss the Indictment against him on the ground that his prior removals were invalid. For the reasons discussed below, Defendant's motion to dismiss the Indictment is DENIED.
On October 31, 2012, a federal grand jury in this district returned an Indictment charging Defendant with being a Removed Alien Found in the United States, in violation of 8 U.S.C. § 1326.
Defendant was born in the Republic of Mexico in 1982. Defendant's parents brought him to the United States in 1989. (Def. Decl. ¶ 3.) Defendant grew up in the United States with his siblings. Before he was 20 years old, Defendant had two children of his own, including a daughter with Down Syndrome, with a high school girlfriend. (Id. at ¶ 6.) Defendant and his girlfriend eventually split up, but Defendant continued to help raise and support his children. (Id.)
In 2002, Defendant was convicted of several charges in the Superior Court of the State of California, Orange County. Defendant pled guilty to unlawful taking of a vehicle in violation of Cal. Veh. Code § 10851(a), evading a peace officer while driving recklessly in violation of Cal. Veh. Code § 2800.2, second degree burglary of a vehicle in violation of Cal. Penal Code §§ 459-460(b), and possession of cocaine in violation of Cal. Health & Safety Code § 11350(a). (Gov't Ex. 2.) Defendant was sentenced to 270 days in jail and three years of probation. (Id.)
On February 26, 2003, Defendant appeared before Immigration Judge Robert O. Vicars ("IJ"). Defendant was charged with being removable on the grounds that Defendant had entered the United States illegally and had been convicted of a crime involving moral turpitude. During the hearing, the IJ raised the issue of voluntary departure. (Tr. at 18.) The IJ explained that voluntary departure was the only relief that Defendant was eligible for. However, when the IJ was made aware that Defendant had pled guilty to possession of cocaine, the IJ told Defendant that his drug conviction was an aggravated felony, rendering him ineligible for voluntary departure. (Tr. at 20.) The IJ ordered Defendant removed to Mexico.
Prior to Defendant's removal, Defendant's father, a lawful permanent resident, had filed an I-130 Petition on behalf of Defendant. The Petition was processed by USCIS on August 21, 2001, and was given a priority date of April 30, 2001. In 2006, after Defendant's father had already become a United States citizen, the I-130 Petition was approved. (Def. Ex. at 11.) Defendant's priority date was reached in June 2007. See Visa Bulletin for June 2007, available at http://www.travel.state.gov/visa/bulletin/bulletin_3236.html.
On September 11, 2012, Defendant attempted to enter the United States through the San Ysidro Port of Entry. He presented a State of Washington Birth Certificate that belonged to someone else. (Gov't Ex. 1.) On September 11, 2012, Defendant was ordered to be removed from the United States via expedited removal, 8 U.S.C. § 1225(b).
In his Motion to Dismiss Indictment, Defendant contends that his 2003 removal was invalid because the IJ erroneously informed him that he was ineligible for voluntary departure. Defendant also contends that his 2012 expedited removal was invalid because of various due process violations that deprived him of the ability to withdraw his application for admission. As discussed below, the Court finds that although there is an issue with respect to the validity of the 2003 removal, the 2012 removal was valid.
A. 1326(d) Collateral Attack
To sustain a collateral attack under 8 U.S.C. § 1326(d), a defendant must demonstrate that (1) he exhausted all administrative remedies available to him to appeal his removal order; (2) the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. United States v. Ubaldo-Figueroa, 364 F.3d 1047, 1048 (9th Cir. 2004). An underlying deportation order is "fundamentally unfair" if (1) the defendant's due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects. Id. When the alleged defect in the deportation proceedings consists of the IJ's failure to inform the defendant regarding his possible eligibility for relief from deportation, in order to establish prejudice, the defendant must only show that he had a plausible ground for relief from deportation. United States v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1998).
An alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). However, the exhaustion requirement of 8 U.S.C. 1326(d) "cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process." United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001). "[A] waiver is not considered and intelligent when the record contains an inference that the petitioner is eligible for relief from deportation, but the ...