The opinion of the court was delivered by: Hon. Gonzalo P. Curiel United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT (ECF NO. 16)
Defendant Francisco Rodriguez-Garcia filed his motion to dismiss the indictment on March 3, 2003, and the Government filed its response and opposition on March 21, 2013. On March 29, 2013, the Court held a hearing on Defendant's motion to dismiss indictment. Following careful review and consideration of the parties' arguments and record in this case, the Court DENIES Defendant's motion for the reasons set forth below.
On February 20, 2004, Rodriguez, a Mexican citizen, was convicted of Attempted Murder in violation of California Penal Code § 664-187; Having a Concealed Firearm on Person in violation of Penal Code § 12025(a)(b)(6); and Street Terrorism in violation of Penal Code § 186.22(a). (02/20/04 Minute Order, Govt.'s Ex. 2).
Because of Rodriguez's conviction, the Department of Homeland Security initiated administrative removal proceedings against him. Rodriguez was detained on May 17, 2007, for immigration removal proceedings after his release from incarceration at High Desert State Prison, Susanville, CA. (Form I-213, Govt.'s Ex. 8). An Immigration Enforcement Agent served Defendant with a Notice of Intent to Issue a Final Administrative Removal Order. (Notice, Govt.'s Ex. 9). The Notice charged that Rodriguez was deportable under 8 U.S.C. § 1227(a)(2)(iii) because he had been convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(A,F,U) (defining "aggravated felony" to include murder, a crime of violence, or an attempt to commit such offenses.) The Notice cited Defendant's February 20, 2004 conviction for attempted murder as the "aggravated felony" that supported the administrative removal proceeding.
The Notice also advised Rodriguez of his right to have an attorney represent him in the proceeding and provided instructions on how to contest deportability and how to appeal any decision. Id. The Notice specifically provided the means to contest deportability because of Rodriguez being a citizen, national, or permanent resident, or because Rodriguez "was not convicted of the criminal offense described in the [citation]." Id. Rodriguez signed the Notice, acknowledging that he received the Notice, and stated that he did not wish to contest the removal. The Immigration Enforcement Officer signed the Notice, as well, and verified that the Notice had been served on and explained to Defendant in the English language. Id.
On May 17, 2012, Rodriguez was issued a Final Administrative Removal Order. (Final Administrative Order, Govt.'s Ex. 10). The Order contained findings that Rodriguez was not a citizen of the United States, that he was a citizen of Mexico, and that he had a final conviction for an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(U,F). Id. On the basis of the Order, Rodriguez was removed on May 18, 2007. (Warrant of Removal, Govt.'s Ex. 12).
On November 2, 2012, Rodriguez was arrested near Calexico, California.
Defendant reentered the United States. On November 14, 2012, a federal grand jury in the Southern District of California returned a one-count indictment against Francisco Rodriguez-Garcia, charging him with Attempted Re-entry of a Removed Alien, in violation of 8 U.S.C. §§ 1326(a) and (b). Rodriguez has entered a plea of not guilty.
Rodriguez moves to dismiss the indictment due to alleged due process defects in the underlying 2007 deportation proceedings. Under § 1326(d), a defendant charged with illegal entry may seek dismissal of the charge by collaterally attacking the prior removal order, which is a prerequisite to establish the crime of illegal entry. See United States v. Mendoza-Lopez, 481 U.S. 828, 837-39 (1987). A defendant moving to dismiss an indictment under § 1326(d) bears the burden of proving:
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceeding at which the order was issued improperly deprived the alien of the ...