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United States v. Gonzalez-Hernandez

United States District Court, S.D. California

August 27, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ENRIQUE GONZALEZ-HERNANDEZ, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matter pending before the Court is the motion to dismiss the information due to an invalid deportation (ECF No. 21) filed by the Defendant Enrique Gonzalez-Hernandez.

FACTUAL BACKGROUND[1]

On March 19, 2013, Defendant received a Notice to Appear charging that the Defendant was an alien, specifically a citizen of Mexico; that Defendant arrived in the United States at a place and date unknown not admitted or paroled after inspection by an Immigration Officer; and that Defendant was convicted on January 17, 1996 in the Superior Court at San Joaquin, California for the offense of 2nd degree burglary and sentenced to 25 years to life confinement. (ECF No. 21-2 at 3). The Notice to Appear charged that Defendant was subject to removal on the grounds that he was an alien present in the United States without being admitted or paroled, pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act; and that he was an alien who has been convicted of a crime involving moral turpitude pursuant to Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act. Id. at 4.

On April 2, 2013, Defendant appeared for an immigration hearing. At the hearing, Defendant confirmed that he had been convicted of burglary in 1996. The Immigration Judge entered an order of removal and Defendant was removed to Mexico on April 4, 2013.

On April 15, 2013, Defendant was arrested attempting to enter the United States at the San Ysidro Port of Entry pedestrian lanes by using the entry documents of another individual. Defendant was not admitted and arrested. Subsequently, Defendant entered a plea of guilty to illegal entry after deportation in violation of 8 U.S.C. ยง 1326. On August 30, 2013, Defendant received a sentence of time-served. On September 3, 2013, Defendant was interviewed by an immigration officer and refused to answer any questions. Defendant was ordered removed in an expedited removal proceeding under Section 235(b)(1)of the Immigration and Nationality Act. The Determination of Inadmissibility charged that

You attempted to enter the United States at or near San Ysidro, CA on or about April 15, 2013. You presented a valid DSP-150 Border Crossing Card belonging to someone else as your entry document. You were sent to secondary for further inspection;
While in secondary inspection, it was determined that the aforementioned document did not belong to you and that you had been ordered removed from the United States previously. You were then arrested and charged with attempted entry after removal.
On or about August 30, 2013, you pled guilty before the United States District Court, Southern District of California, to the offense of Attempted Reentry of Removed Alien, in violation of title 8 USC 1326. You were sentenced to time served incarceration for this conviction;
You are an immigrant not in possession of a valid entry document required by the Immigration and Nationality Act.

(ECF No. 21-2 at 17-18).

On February 11, 2014, Defendant was arrested by border patrol agents approximately one mile north of the United States/Mexico border.

On March 13, 2014, an Information was filed charging that the Defendant was an alien, who previously had been excluded, deported and removed from the United States, found in the United ...


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