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United States v. Galvan-Rubio

United States District Court, Ninth Circuit

October 29, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS ALBERTO GALVAN-RUBIO, Defendant.

ORDER DENYING MOTION TO DISMISS INFORMATION

JEFFREY T. MILLER, District Judge.

Pursuant to 8 U.S.C. § 1326(d), Defendant Luis Alberto Galvan-Rubio moves to dismiss the Information charging him with being a deported alien found in the United States in violation of 8 U.S.C. §§ 1326(a) and (b). The Government opposes the motion. For the following reason, the court denies Defendant's motion to dismiss the Information.

I. BACKGROUND

On April 14, 2013 at approximately 3:00 a.m., Defendant attempted to enter the United States from Mexico at the Otay Mesa Port of Entry as a passenger in a vehicle by presenting a California identification card with a California birth certificate bearing the name "J.J.V." The U.S. Customs and Border Patrol ("CBP") Officer suspected that Defendant was not the rightful owner of the documents presented. A query of Defendant's fingerprints through the Automated Biographic Identification System (IDENT/IAFIS) identified him as a Mexican citizen who had previously been removed from the United States. Additional queries in the Central Index System ("CIS") and Enforce Alien Removal Module ("EARM") confirmed that Defendant was a Mexican citizen without legal documents to enter the United States. The CIS and EARM searches revealed that an immigration judge had ordered the Defendant to be removed on or about April 20, 2006. They also revealed that Defendant had last been physically removed on April 23, 2010 in San Ysidro, California. Defendant was charged with violating 8 U.S.C. § 1326 as he entered the United States without the express consent of the Secretary of the Department of Homeland Security or his reapplication for admission to the United States.

Immigration History

An immigration judge originally granted Defendant voluntary departure on March 21, 2001, and Defendant was subsequently removed that day. Defendant illegally reentered the country sometime later. On March 28, 2003, Defendant was served a Notice that he was an aggravated felon due to a May 22, 2002 conviction for the offense of possession of a firearm by a felon.[1] Defendant waived his petition for review and was removed pursuant to a Final Administrative Removal Order the next day. Defendant again illegally reentered the United States sometime after his deportation. On May 17, 2004, the aforementioned Final Administrative Removal Order was reinstated, and Defendant was subsequently removed on June 7, 2004.

Defendant again reentered the United States illegally sometime around March 1, 2005. On April 6, 2006, Defendant was served a Notice that he had entered the United States without inspection. Pursuant to that notice, an immigration judge issued an Order to remove Defendant on April 20, 2006. At the time of the hearing, Defendant admitted that he was an aggravated felon subject to a maximum custodial period of 20 years if he reentered the United States without authorization.

On April 22, 2010, the United States claims that the immigration judge's April 20, 2006 order was reinstated after Defendant illegally reentered the United States. At the time of this removal, Defendant argues that the allegedly invalid 2004 administrative removal order was reinstated. The Government's Exhibit 13 confirms both explanations as both the April 22, 2006 and June 7, 2004 orders are listed in the April 21, 2010 reinstatement.[2] Defendant signed the April 22, 2010 order, indicating that he did not wish to make a statement contesting this determination. Defendant was removed again on April 23, 2010.

Criminal History

Defendant has an extensive criminal history consisting of at least one misdemeanor conviction for battery and five felony convictions for possession of a firearm by a felon in violation of Cal. Penal Code § 12021(a). In the aggregate, Defendant was sentenced to over six years in state custody for his state crimes.

II. LEGAL STANDARD

A defendant in a § 1326 prosecution may collaterally attack a prior deportation before trial and preclude the government from relying on such deportation where "the deportation proceeding was so procedurally flawed that it effectively eliminated the right of an alien to obtain judicial review...." United States v. Alvarado-Delgado , 98 F.3d 492, 493 (9th Cir. 1996), cert. denied, 117 S.Ct. 1096 (1997). The collateral attack of a prior deportation is statutorily permitted only if:

(1) the alien has 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 to ...

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