United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S MOTION TO DISMISS Re: Dkt. No. 17
EDWARD J. DAVILA, District Judge.
Defendant Gonzalo Vasquez-Gonzalez ("Vasquez-Gonzalez") moves to dismiss a one-count Information charging him with illegal reentry after deportation in violation of 8 U.S.C. § 1326. See Docket Item No. 17. Plaintiff United States of America opposes the motion. Having carefully considered the pleadings and the arguments of counsel presented at the hearing on December 8, 2014, Vazquez-Gonzalez's motion will be denied for the reasons explained below.
Vasquez-Gonzalez was born in Mexico in 1975 and entered the United States with his mother, Narda, and younger brother, Arnoldo, in 1980. See Decl. of Narda Gonzalez ("N. Gonzalez Decl."), Docket Item No. 17, at ¶ 1. He was five years old at the time. Id . At the age of 12, Vasquez-Gonzalez applied for temporary legal residence and, in 1989, he became a legal permanent resident.
Vasquez-Gonzalez's family settled in Santa Cruz County, California. He participated in activities and attended the schools in that area. Id .; see also Decl. of Arnoldo Vasquez ("A. Vasquez Decl."), Docket Item No. 17, at ¶ 1. He graduated from high school in 1993, and then began working. See A. Vasquez Decl., at ¶¶ 1, 3. He also assisted Narda in caring for his younger siblings while she was at work. Id. at ¶¶ 2-3.
On May 20, 1994, when Vasquez-Gonzalez was approximately 19 years old, he was convicted in Santa Cruz County Superior Court of misdemeanor battery in violation of California Penal Code § 242, and felony grand theft from a person in violation of California Penal Code § 487. See Compl., Docket Item No. 1, at ¶ 5; see also Defs. Mot., at 4:9-12. He was sentenced to 30 days in jail for these convictions. See Compl., at ¶ 5. Less than one year later, on March 3, 1995, Vasquez-Gonzalez was convicted in the same state court of felony assault with a deadly weapon in violation of California Penal Code 245(a)(1). Id. at ¶ 6. He was sentenced to four years in prison for that conviction. Id.
Removal proceedings were commenced against Vasquez-Gonzalez while he was in prison and he was deported to Mexico on or about September 7, 1999. Id. at ¶ 3. He immediately re-entered the United States. Id. at ¶ 4. He was ultimately found by immigration authorities in Santa Cruz County on or about May 8, 2014. Id. at ¶ 8.
The Information underlying this case was subsequently filed on May 27, 2014. See Docket Item No. 7. This motion followed.
II. LEGAL STANDARD
As a predicate to a conviction under 8 U.S.C. § 1326, "the Government must establish that the defendant left the United States under order of exclusion, deportation, or removal, and then illegally reentered.'" United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (quoting United States v. Barajas-Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011)).
Consequently, a defendant charged with a violation of § 1326 may, as a matter of due process, collaterally attack a predicate deportation order prior to trial. United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). In doing so, the defendant must show that: (1) he exhausted the administrative remedies available for seeking relief from the predicate order; (2) the deportation proceedings "improperly deprived" him of an opportunity for judicial review; and (3) the order was "fundamentally unfair." 8 U.S.C. § 1326(d). A deportation order is "fundamentally unfair" if it resulted from proceedings that violated the defendant's due process rights and caused prejudice. Raya-Vaca, 771 F.3d at 1201-1202. "[W]here a deportation proceeding violates an alien's due process rights, the Government may not rely on any resulting deportation order as proof of an element of a criminal offense." United States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir. 1994).
Vasquez-Gonzalez argues the 1999 deportation order resulted from a proceeding that violated his due process rights. Specifically, he argues that the Immigration Judge's ("IJ") failure to advise him of potential deportation relief under § 212(c) of the Immigration and Nationality Act was fundamentally unfair and prevented him from exhausting administrative remedies and pursuing judicial review.
The Government does not contest the due process violation and therefore concedes that Vasquez-Gonzalez was eligible for § 212(c) relief. As a result, the first component of the fundamental unfairness element is satisfied, as are the administrative exhaustion and judicial review elements necessary for a collateral attack on the 1999 deportation order. United States v. Vidal-Mendoza, 705 F.3d 1012, 1015 (9th Cir. 2013) (holding that an alien need not separately demonstrate administrative exhaustion and denial of judicial review if the IJ failed to provide information about apparent eligibility for relief). This motion's success ...