United States District Court, S.D. California
ORDER DENYING MOTION TO DISMISS INDICTMENT
ROGER T. BENITEZ, District Judge.
Now before the Court is Defendant's Motion to Dismiss the Indictment (filed September 30, 2014). Upon review, this Court finds the underlying removal to be valid. Therefore, the motion is denied.
Defendant is currently charged in Count Two of the Indictment 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 was granted an adjustment to legal permanent resident status on June 25, 1991. On April 29, 2014, he was apprehended north of the Mexico border, in the United States. That arrest gives rise to Count Two of the Indictment. Mr. Ayala-Yupit was first removed by order of an immigration judge on July 25, 2002. The removal order has been reinstated several times since 2002.
Defendant has been convicted of numerous crimes in numerous places over twenty years, according to the Government. The 2002 removal order was premised upon only four of those convictions, at least one of which was deemed to be an aggravated felony because it was a felony drug offense under Minnesota state law. Moreover, under settled law in the Eighth Circuit at the time, a drug offense considered a felony under state law could qualify as an aggravated felony under federal law.
Defendant has moved to dismiss the indictment pursuant to 8 U.S.C. § 1326(d). He argues that his removal in 2002 was fundamentally unfair and violated his right to due process. He argues that his Minnesota felony drug conviction does not now qualify as an aggravated felony. He continues the argument saying it was unreasonable for the immigration judge to rely on Eighth Circuit law at the time because the Eighth Circuit view was itself unreasonable, as evidenced by a more recent Supreme Court decision. Defendant then asserts that if the Minnesota state court conviction is not an aggravated felony, he has a plausible claim that he would have been given some form of discretionary relief.
This Court disagrees. First, Defendant waived his right to pursue his administrative remedies while represented by competent counsel during the immigration hearings in 2002. Second, the Eighth Circuit's decision was not an unreasonable interpretation of an arguably ambiguous federal statute and the immigration judge was entitled to rely on the settled law of the Eighth Circuit at the time of the removal proceedings in 2002. Finally, Defendant does not have a plausible claim for discretionary relief because of his many criminal convictions and his lack of family ties in the United States.
II. CHALLENGING THE UNDERLYING REMOVAL ORDER
An alien who has been deported or removed commits a crime if the alien thereafter "enters, attempts to enter, or is at any time found in, the United States." 8 U.S.C. § 1326(a). One method of violating § 1326 is returning to the United States after entry of a prior removal order. See id. § 1326(a)(1); see also United States v. Vidal-Mendoza, 705 F.3d 1012, 1014-15 (9th Cir. 2013). Congress has strictly limited an alien's ability to bring a collateral challenge to such an order...." An alien facing criminal charges may initiate a collateral attack on the underlying order only if "(1) the alien 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 for judicial review; and (3) the entry of the order was fundamentally unfair."
United States v. Hernandez-Arias, 757 F.3d 874, 879-80 (9th Cir. 2014) (citations omitted).
If the alien establishes a due process violation that prevented his waiver of appeal from being knowing and intelligent, he is excused from the exhaustion requirement. Id. 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. By contrast, where the state statute of conviction sweeps more broadly than the generic crime, a conviction under the law cannot count as an aggravated felony, even if the defendant actually committed the offense in its generic form.
Id. at 670-72 (internal quotation marks and citations omitted).
A drug trafficking offense is an aggravated felony. However, the Supreme Court determined that a state court conviction for simple possession of a small amount of marijuana without remuneration does not qualify as an aggravated felony. See ...