United States District Court, Southern District of California
ORDER DENYING MOTION TO DISMISS INDICTMENT AND DENYING MOTION TO COMPEL DISCOVERY
Hon. Roger T. Benitez, United States District Judge.
Now before the Court is Defendant's Motion to Dismiss the Indictment and Motion to Compel Discovery concerning withdrawal of applications for removal (filed September 18, 2014). Upon review, this Court finds the underlying removal to be valid. Therefore, the motion to dismiss the indictment is denied and the discovery motion is denied.
Defendant is currently charged with the crime of Attempted Reentry of a Removed Alien in violation of 8 U.S.C. § 1326. From the record before the Court, it appears that there is no dispute as to the following salient facts.
Defendant is a citizen of Mexico. He has never had a lawful immigration status. Both of his parents are also citizens of, and reside in, Mexico. Defendant has had several contacts with immigration officials over the past fourteen years. On January 30, 2001, he was apprehended in the United States and afforded voluntary return. One week later, on February 7, 2001, he was again apprehended in the United States and again afforded a voluntary return. On July 10, 2007, after serving a state jail sentence in the State of Washington, Defendant was order removed. Less than one month later, on August 2, 2007, Defendant was apprehended again in the United States and afforded a voluntary return. In April 2013, he was deported and physically removed to Mexico following his incarceration in Washington for drug and firearm crimes. On November 30, 2013, he was again apprehended in the United States and returned to Mexico. Most recently, On January 12, 2014, Defendant was again apprehended in the United States after crossing the All-American Canal on a raft.
Over the same fourteen years, he has been convicted of six different crimes under the laws of the State of Washington. The conviction underlying the most recent deportation order, and the conviction at issue here is for a drug offense on November 1, 2012 for violating Revised Code Washington § 69.50.401(1). He was sentenced to serve twelve months and one day.
Section 69.50.401(1) states, "Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance." On the same date, Defendant was convicted of the crime of Alien in Possession of a Firearm in violation of Revised Code Washington §9.41.171 and sentenced to twelve months of incarceration, running concurrently with the drug conviction sentence. Defendant pleaded guilty to both crimes in a written plea agreement.
The plea agreement set forth Defendant's own understanding of the crime (at paragraph 11): "[Printed] The judge has asked me to state in my own words what I did that makes me guilty of this crime. This is my statement: [handwritten] On or about July 20, 2012, in Snohomish County, Washington], I did unlawfully possess methamphetamine, a controlled substance, with intent to deliver.'" (Emphasis added.)
II. CHALLENGING THE UNDERLYING REMOVAL ORDER
Defendant has moved to dismiss the indictment pursuant to 8 U.S.C. § 1326(d). He argues that his removal in 2013 was fundamentally unfair and violated his right to due process. He argues that his Washington state court conviction does not qualify as an aggravated felony. And if the conviction is not an aggravated felony, then he would have been entitled to some form of discretionary relief.
The Due Process Clause guarantees an individual charged with illegal reentry under 8 U.S.C. § 1326 the opportunity to challenge a prior removal that underlies the criminal charge. United States v. Garcia-Santana, 743 F.3d 666 (9th Cir. 2014). The mechanics of such a challenge are the product of thousands of judicial decisions over several decades. Garcia-Santana fairly states the current state of the law and is repeated here for reference:
Section 1326(d) codifies this principle. It authorizes collateral attack on three conditions: (1) that the defendant exhausted available administrative remedies; (2) that the removal proceedings deprived the alien of the opportunity for judicial review; and (3) that the removal order was fundamentally unfair. Removal is fundamentally unfair, in turn, if (1) a defendant's due process rights were violated by defects in his underlying removal proceeding, and (2) he suffered prejudice as a result of the defects. An immigration official's failure to advise an alien of his eligibility for relief from removal, including voluntary departure, violates his due process rights. An alien who has been convicted of an aggravated felony is not eligible for voluntary departure in lieu of removal. [The Defendant's] removal order stated that she was ineligible for any relief, because she had previously been convicted of an aggravated felony. This [case] turns on the accuracy of that statement. The government... is challenging the grant of collateral relief... on the ground that [the Defendant's] conviction [ ] qualifies as an aggravated felony. If [Defendant's] previous conviction . . . does not qualify as an aggravated felony, then her prior removal order was constitutionally invalid and cannot support charges under § 1326. If the conviction does qualify as an aggravated felony, then her prior removal order is proper and prosecution may proceed.
To determine whether an offense is an aggravated felony, we use the categorical and modified categorical approaches of Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). Under the categorical approach, we look not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony. The generic definition of an offense is determined by the contemporary usage of the term. A state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense. That is, an offense is an aggravated felony if the full range of conduct covered by the [state criminal statute] falls within the meaning of the relevant definition of an aggravated felony. ...