United States District Court, Northern District of California, San Jose Division
For Rigoberto Magdaleno, Defendant: Cynthia Chin Young Lie, Federal Public Defender, LEAD ATTORNEY, San Jose, CA.
For USA, Plaintiff: William James Gullotta, LEAD ATTORNEY, United States Attorney's Office, Northern District of California, San Jose, CA.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS THE INFORMATION [Re: ECF23]
BETH LABSON FREEMAN, United States District Judge.
Defendant Rigoberto Magdaleno is charged with violating 8 U.S.C. § 1326, Illegal Reentry After Deportation. He asks this court to dismiss the information on the basis that his deportation proceedings were constitutionally invalid and therefore the deportation order resulting therefrom cannot serve as a predicate deportation for the required element of the offense. For the reasons below, the motion is GRANTED.
Defendant Magdaleno entered this country in 1985 with his family. Defendant's Opening Brief, ECF 23 at 2. On November 29, 1988, he applied for legal residence as a special agriculture worker under § 210 of the Immigration Reform and Control Act of 1986 (IRCA), 8 U.S.C. § 1160. Norris Deck., ECF 27-1. He was approved for temporary resident status on October 27, 1990, and approved for permanent resident status on December 1, 1990. Norris Deck., ECF 27-1.
On March 10, 1995, Magdaleno pleaded guilty to two independent felonies and was sentenced to 360 days in county jail. Arraignment and Sentence Orders, ECF 23-2, -3. One consequence of these pleas was that Magdaleno became deportable under 8 U.S.C. § 1251(a)(2)(A)(ii) (1995). The government instituted removal proceedings against Magdaleno in December, 1998. Notice to Appear, ECF 23-1. On January 12, 1999, Magdaleno had a removal hearing before an immigration judge and was ordered removed from the country. Summary of Proceedings, Warrant, and Removal Order, ECF 23-4, -5, -6. At the hearing, he was not informed that he might be eligible to apply for discretionary relief from the removal order. Removal Hearing Transcript, ECF 28. Without proper advisement of his rights, he waived his right to appeal the order. Id. at 5.
He subsequently reentered the country, prompting the reinstatement of the initial removal order on November 30, 2000. He returned again and this time was charged with Eluding Examination and Inspection by Immigration Officers of the United States and with Illegal Reentry After Deportation. Plea Agreement, ECF 27-6. On April 1, 2010, he agreed to plead guilty to the first charge and the prosecution agreed to drop the second charge. Id. As part of the plea agreement, Magdaleno also stipulated to the reinstatement of the initial removal order and was removed thereunder.
Undeterred, he once again reentered the country, which led to the current charges being brought against him.
II. LEGAL STANDARD
In a prosecution for Illegal Reentry under 8 U.S.C. § 1326(a), the government must prove, inter alia, that the defendant was previously " denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal [was] outstanding." 8 U.S.C. § 1326(a)(1); United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1129 (9th Cir. 2013). The defendant accordingly has a due process right to collaterally attack the underlying deportation order, because it serves as a predicate element of the crime for which he is charged. 724 F.3d at 1129; United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) (" Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.").
Section 1326(d) expressly provides for such collateral attacks on an underlying deportation order, but establishes limits on them. To succeed in a collateral attack to an underlying removal order, a defendant must demonstrate that:
1) he exhausted all administrative remedies available to appeal his prior removal order;
2) the prior removal proceedings " improperly deprived [him] of the opportunity for judicial ...