The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER DENYING MOTION TO DISMISS INDICTMENT
Defendant Julio Alexander Guzman-Vasquez ("Defendant") has filed a motion to dismiss the indictment pursuant to 8 U.S.C. § 1326(d) on the grounds that his August 23, 2010 order of removal was invalid. (See ECF No. 15.) For the reasons discussed below, Defendant's motion to dismiss the indictment is DENIED.
Defendant received a Notice to Appear ("NTA") dated May 24, 2010, charging that he was removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an "aggravated felony" after admission. Specifically, the NTA alleged that on January 25, 2007, Defendant was "convicted in the Superior Court of California, County of Los Angeles, for the offense of Resisting an Executive Officer, in violation of Section 69 of the California Penal Code." (See ECF No. 17-1.)
During a removal hearing on July 29, 2010, Defendant admitted each of the allegations set forth in the NTA. The immigration judge ("IJ") asked Defendant if he wanted to attack his conviction in state court, explaining that if Defendant's conviction was an aggravated felony, then there would be no possibility of relief from removal. Defendant declined. The IJ determined that Defendant's conviction for resisting an executive order was an aggravated felony, although it is a point of contention whether the IJ employed the categorical or modified categorical approach, see infra. At the next immigration hearing on August 23, 2010, the IJ reiterated that he found Defendant's conviction under CPC § 69 to be an aggravated felony and ordered him removed after Defendant waived his right to appeal.
On January 16, 2013, the grand jury returned an indictment, charging Defendant with one count of being a deported alien who knowingly and intentionally attempted to enter the United States in violation of 8 U.S.C. § 1326(a) and (b). The indictment alleges that Defendant was removed from the United States subsequent to April 1, 2009 and attempted to re-enter the United States without permission on November 17, 2012. (See ECF No. 1.)
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.
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).
Defendant argues that the IJ's finding that he had been convicted of an aggravated felony was erroneous and constituted a due process violation. As such, he contends, this alleged due process violation excused the exhaustion requirement, improperly deprived him of the opportunity for judicial review, and made entry of the order fundamentally unfair.
The first issue the Court must consider is whether the applicable law is the law at the
time of the hearing before the IJ or the law at the time of the § 1326 motion. Under § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). Aggravated felonies include crimes of violence. See 8 U.S.C. § 1101(a)(43(F). Defendant argues that his ...