United States District Court, C.D. California
NADINE HETTLE, DFPD, Attorneys for Defendants.
CRIMINAL MINUTES - GENERAL O'
CHRISTINA A. SNYDER, District Judge.
Proceedings: MOTION TO DISMISS INDICTMENT (Dkt. No. 25, filed February 2, 2015).
Defendant Janice Marylene Aitken is charged with illegally reentering the United States after having been deported as a result of her previous conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). On February 2, 2015, defendant filed a motion to dismiss the indictment on the ground that her previous conviction was not in fact an aggravated felony, and that her deportation order therefore violated her due process rights. Dkt. No. 25. The government filed an opposition on February 17, 2015, and defendant filed a reply on March 2, 2015. Dkt. Nos. 30, 32. On March 30, 2015, the Court held a hearing at which counsel for the parties appeared and argued. After considering the parties' arguments, the Court grants the motion to dismiss for the reasons that follow.
The operative facts are not in dispute. Defendant was born in Canada, was admitted to the United States as a lawful immigrant, and later became a legal permanent resident. She has two daughters who are United States citizens. Mot. at 3.
In 1991, defendant was charged in California with murder and with personally using a firearm within the meaning of California Penal Code sections 12022.5 and 1192.7(c)(8). Mot. Ex. A. On March 17, 1992, defendant pleaded guilty to the lesser included offense of voluntary manslaughter in violation of Penal Code section 192(a). She received a sentence of eleven years of imprisonment-six years for the manslaughter violation, and five years for a firearm-related enhancement pursuant to Penal Code section 12022.5. Mot. Ex. B.
On November 20, 1995, defendant was ordered to show cause why she should not be deported. This order alleged that defendant was convicted of voluntary manslaughter in violation of Penal Code section 192(a), and sentenced to confinement for a period of eleven years for that offense. Mot. Ex. C. In subsequent deportation proceedings before an Immigration Judge, defendants' attorney conceded that defendant had been convicted of voluntary manslaughter, and that she was "deportable as charged." Mot. Ex. D. at 23-24. Defendant's counsel nonetheless argued for relief under section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c), on due process and equal protection grounds distinct from those raised in the instant motion. Mot. Ex. D. at 24-25, 33-35. On April 4, 1997, the Immigration Judge denied defendant's application for a waiver under section 212(c), and ordered her deported to Canada. Mot. Ex. E. Defendant unsuccessfully appealed to the Board of Immigration Appeals ("BIA"), and then to the Ninth Circuit, which dismissed her petition on March 28, 2000. Mot. Exs. F, G.
Defendants subsequently reentered the United States and, on January 31, 2014, defendant was arrested in her home. On March 7, 2014, defendant was indicted for illegally reentering the United States after being deported subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2). Dkt. No. 1.
Defendant was deported on the ground that she had committed a "crime of violence, " as defined in 18 U.S.C. § 16, which rendered her deportable as an aggravated felon pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). See 8 U.S.C. § 1101(a)(43)(F) (defining "aggravated felony"). The crime of violence underlying defendants' deportation was defendant's conviction for voluntary manslaughter in violation of Penal Code section 192(a).
When, as here, a defendant is prosecuted for illegal reentry pursuant to 8 U.S.C. § 1326, the underlying removal order serves as a predicate element of the offense, and is therefore subject to collateral attack under the due process clause. United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). A three-part test governs whether a defendant may collaterally attack a prior deportation. 8 U.S.C. § 1326(d). Under this test, a defendant must demonstrate that: "(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." Id.
Here, the disputed issue is whether defendant's prior removal order was fundamentally unfair. "An underlying removal order is fundamentally unfair if: (1) a defendant's due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). "To prove prejudice, [defendant] need not show that he actually would have been granted relief; rather, he must show only that he had a plausible' basis for seeking relief from deportation." Pallares-Galan, 359 F.3d at 1103. Here, defendant argues that her ...