M. JAMES LORENZ, District Judge.
Defendant is charged in a one-count indictment with attempted entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b). Defendant has been physically removed from the United States pursuant to a removal order twice. An immigration judge first ordered Defendant removed on June 28, 2011, after which he was physically removed from the United States on August 24, 2011. On November 5, 2011, the June 28, 2011, order of removal was reinstated, and Defendant was physically removed on May 9, 2012.
On May 6, 2013, Defendant filed a Motion to Dismiss the Indictment on the basis that there is no valid order of removal upon which the government may base its prosecution. Defendant argues that the Immigration Judge ("IJ") never advised him during the 2011 removal proceedings of his right to seek pre-conclusion voluntary departure under 8 U.S.C. § 1229a, I.N.A. § 240B(a), thereby violating his due process rights. On June 9, 2013 the Government filed an Opposition, and on June 13, 2013, Defendant filed a Reply.
Defendant is a 23-year-old native and citizen of El Salvador. (Mot. 2.) When Defendant was very young, Defendant's father, a former police officer and soldier in the Salvadorian military, left El Salvador for the United States where he applied for, and was granted, asylum. ( Id., Ex. B.) Defendant was forced to quit school early and begin working to support his family after his father came to the U.S. ( Id. ) When Defendant was 14 years old, he left El Salvador and made the journey to the Mexican border with the United States to reunite with his father. ( Id., Ex B.) With the help of a "coyote" he was smuggled across the border into Arizona, where his father met him and paid the coyote $2, 000. ( Id. ) Defendant and his father returned to Los Angeles, where his father lived. ( Id. ) In addition to his father, Defendant stated he also has a half brother who lives in Virginia. ( Id. )
Defendant claimed that he was very happy to be near his father, but that his father was very tough on him and got angry because of the way Defendant dressed, and because Defendant did poorly in school. ( Id., Ex B.) Defendant stated that he, "worked very hard in school, [but] it was hard for me to succeed because I don't speak English well and it was hard for me to follow the classes." ( Id., Ex. B.) Despite these difficulties, Defendant completed the 11th grade. ( Id. ) In 2007, Defendant's father remarried. ( Id., Ex. B.) Defendant stated that his new step-mother imposed rules on when he could be in the house which made it difficult for Defendant to do his schoolwork. ( Id. ) The situation deteriorated, and eventually Defendant's father kicked his son out of the house. ( Id., Ex. B.) Defendant lived with the ex-girlfriend of his father for about two years, and then lived on the street for three years. ( Id. Ex B.) During this time, Defendant began spending time with other Salvadorian youths, some of whom belonged to the "MS-13" gang. ( Id. ) As Defendant stated, "I joined the gang, unfortunately, because they were the only ones that supported me and gave me friendship." ( Id. Ex. B.) Defendant got a gang tattoo on his leg, but stated that the location of the tattoo indicated he was not as deeply committed to the gang as members who got tattooed higher up on the body. ( Id. )
After he joined the gang, Defendant had a few brushes with the law. In 2007, he was served with a gang injunction. ( Id. ) In 2008, he was arrested in Las Vegas for attempting to cash a forged check. (Oppo. Ex 1.) That same year, Defendant returned to California and incurred a contempt of court conviction for violating his gang injunction. (Mot. Ex E.)
After serving 8 months in custody, Defendant stated he realized he "wanted to change his life" and upon his release he went to work in the fields in 2010. ( Id. Ex B.) According to Defendant, he left the gang to start a better life, and the gang was not upset that he left. (Mot. Ex B.) After only 9 months he had to quit his agriculture job because his employer demanded that Defendant show proof of an "El Salvadorian ID, " which he did not have. ( Id. ) Defendant stated that he returned to Los Angeles to obtain the required ID, but was arrested. ( Id. )
On March 30, 2011, the Department of Homeland Security ("DHS") served Defendant with a Notice to Appear ("NTA") alleging that Defendant (1) was not a United States citizen, (2) was a native and citizen of El Salvador, (3) entered the United States at an unknown place and date, and (4) was not admitted or paroled into the United States after inspection by an immigration officer. (Mot. 3 Ex A.) At a master calendar hearing on April 20, 2011, before an Immigration Judge ("IJ"), Defendant admitted each of the allegations and conceded his removability under Immigration and Nationality Act Section 212(a)(6)(A)(I). ( Id. Ex E.) The IJ immediately thereafter conducted a bond hearing, for which no record exists. However, once the removal proceedings commenced again, the IJ stated "Okay, now, sir, at the bond hearing you said you wanted to apply for asylum, withholding, and Convention Against Torture, is that right?" ( Id. ) Defendant responded that he did want to pursue those types of relief, and the IJ gave him the relevant forms and continued the case until May 23, 2011, to allow Defendant sufficient time to complete the forms. ( Id. at 21-22.) The IJ asked whether Defendant had the money to return to his country and a passport, to which Defendant answered he did. ( Id. at 19)
Defendant filed his completed applications for asylum, withholding and relief under Convention Against Torture on May 23, 2011, and the case was continued to June 28, 2011 for a hearing on the merits. ( Id. at 23.) At the June 28, 2011, merits hearing, Defendant produced his affidavit, and testified. ( Id. at 28, 32-51.) The IJ rendered a detailed oral decision, denying the application for asylum, withholding of removal, and relief under Convention Against Torture. ( Id. Ex D.) The judge further denied Defendant's request for post-conclusion voluntary departure, exercising his discretion and finding Defendant ineligible for that type of relief because Defendant stated he was not sure whether he could get the money and a passport to return to his country, and that it was unclear whether his time in jail for a bad check and violating parole would constitute an aggravated felony, and therefore it was uncertain whether Defendant would have any future legal immigration prospects in this country. ( Id. at 11-12.) Defendant was removed to El Salvador on August 24, 2011. ( Id. Ex F.)
May 2012 Removal
On November 25, 2011, DHS issued Defendant a notice of intent to reinstate the June 28, 2011 removal order. ( Id., Ex F.) Defendant was subsequently removed pursuant to ...