The opinion of the court was delivered by: Irma E. GONZALEZUnited States District Judge
MOTION TO DISMISS INDICTMENT DUE TO INVALID ORDER DENYING DEFENDANT'S DEPORTATION [Doc. No. 20]
Presently before the Court is Defendant Jose Serrano-Guerra's ("Defendant") motion to dismiss the indictment due to invalid deportation. [Doc. No. 20, Def.'s Mot.] For the following reasons, the Court DENIES the motion to dismiss the indictment.
The following facts are mainly from Defendant's motion. Defendant states that they are based on information and evidence provided by the Government in discovery. Defendant does not admit the accuracy of this information. [Doc. No. 20-1, Def.'s Mot. at 1.]
Defendant came to the United States in 1985 when he was approximately 10 years old. He has four children, all of whom are U.S. citizens. Many of his family members are in the United States and are either U.S. citizens or lawful permanent residents ("LPRs"). [Id.] On February 3, 1994, Defendant pled guilty to Assault with a Firearm in violation of Penal Code § 245(a)(2) in California Superior Court.*fn1
He was sentenced to seven years in prison. Defendant was a minor when he committed the offense on May 14, 1993. [Id. at 2; Ex. B.]
On July 10, 1997, Defendant was served with a Notice to Appear in immigration court on the grounds that he was subject to removal. The ground for removal was that he entered the United States in 1985 without being admitted or paroled after inspection by an immigration officer. [Doc. No. 20-1, Ex. C.] On July 15, 1997, Defendant appeared in immigration court and admitted the allegations against him. The Immigration Judge ("IJ") found Defendant removable. [Doc. No. 20-1, Def.'s Mot. at 2; Ex. D.] Defendant alleges that the IJ did not advise him of any relief available to him. [Id.; Doc. No. 20-1, Def.'s Mot. at 2.] Defendant waived his right to appeal the IJ's order. [Id. at 3; Ex. D.]
The Government states that Defendant has been removed twice from the United States. Defendant was first removed to Mexico on July 30, 1997. [Doc. No. 23-1, Ex. 1; Doc. No. 23, Govt.'s Opp. at 2-3.] Defendant then reentered the United States on around August 1, 2008. His 1997 Order of Deportation was reinstated on August 16, 2010. [Id. at 3; Doc. No. 23-1, Ex. 4.] Defendant departed the United States on August 16, 2010. [Doc. No. 23, Govt.'s Opp. at 3; Doc. No. 23-1, Ex. 6.] On March 23, 2012, Defendant attempted to enter the United States without inspection. [Doc. No. 20-1, Def.'s Mot. at 3.] Defendant was indicted on May 16, 2012. [Doc. No. 1.] Defendant subsequently filed the instant motion to dismiss the indictment due to invalid deportation. [Doc. No. 20, Def.'s Mot.]
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 fundamental unfairness.
A. 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. United States v. ...