United States District Court, S.D. California
ORDER DENYING MOTION TO DISMISS INFORMATION
Roger T. Benitez United States District Judge
before the Court is Defendant's Motion to Dismiss the
Information. Upon review, this Court finds the underlying
removal to be valid. Therefore, the motion to dismiss the
Information is denied.
is currently charged with the crime of Attempted Reentry of a
Removed Alien in violation of 8 U.S.C. § 1326(a) and
(b). From the record before the Court, it appears that there
is no dispute as to the following salient facts.
is a citizen of Mexico. He has never had a lawful immigration
status. He came to the United States in 1981 without being
inspected or admitted. According to the Government, on March
31, 1983, he was convicted in the Southern District of
California of illegal entry in violation of 8 U.S.C. §
1325. He was also convicted of a number of state misdemeanors
between 1993 and 2001.
motion to dismiss focuses on his next conviction. On December
31, 2001, Cervantes was convicted of violating California
Health & Safety Code §11351, Possession of Cocaine for
Sale, and §11352, Transportation of a Controlled
Substance. On June 19, 2002, Cervantes was also convicted of
violating California Health & Safety Code §11359,
Possession of Marijuana for Sale, and §11360(a),
Transportation of Marijuana.
on his criminal conviction for violating §11351
qualifying as an "aggravated felony, " the
Government issued (on June 24, 2002), a Notice of Intent to
Issue a Final Administrative Removal Order. On the next day,
he was ordered removed to Mexico. He re-entered the United
States and was again removed in November 2006 and then again
in June 2009. On October 24, 2015, he re-entered the United
States and is now charged with attempted reentry after having
been previously removed.
CHALLENGING THE UNDERLYING REMOVAL ORDER
has moved to dismiss the Information pursuant to 8 U.S.C.
§ 1326(d). He argues that his removal order in 2002 was
fundamentally unfair. It was unfair, he argues, because his
state court conviction for violating §11351 did not
qualify as an aggravated felony. And if it was not an
aggravated felony, then the conviction did not support the
removal order. However, because Cervantes is not a Legal
Permanent Resident, he must prove legal prejudice. Because he
has not proven legal prejudice, he has not satisfied the
requirements of §1326(d) and his motion to dismiss is
Collateral Attack Under §1326(d)
individual charged with illegal reentry under 8 U.S.C. §
1326 has a right to challenge the removal that underlies the
criminal reentry charge. In the typical case, the criminal
charge may be dismissed if the three prongs of §1326(d)
Section 1326(d) . . . . 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.
United States v. Garcia-Santana, 774 F.3d 528,
532-33 (9th Cir. 2014) (internal quotation marks and
citations omitted). "To satisfy the third prong-that the
order was fundamentally unfair - the defendant bears the
burden of establishing both that the deportation
proceeding violated his due process rights and that the
violation caused prejudice." United States v.
Raya-Vaca, 771 F.3d 1195, 1201-02 (9th Cir. 2014)
(citation omitted) (emphasis added).
Exhaustion and Deprivation
contends that he has exhausted the administrative remedies,
that he was deprived of judicial review, and that he need not
show prejudice. Because Cervantes's removal was an
expedited removal, Ninth Circuit precedent compels the
conclusion that administrative review was exhausted and
judicial review was deprived.
As the district court recognized and as the Government
concedes, the statute governing expedited removal proceedings
afforded Raya-Vaca no opportunity for administrative or
judicial review. See, e.g., 8 U.S.C. §
1225(b)(1)(C) ("Except as provided in the subparagraph
on credible-fear interviews, a removal order ... is not
subject to administrative appeal ...."); id.
§ 1225(b)(1)(A)(i) ("If an immigration officer
determines that an alien ... who is arriving in the United
States ... is inadmissible ..., the officer shall order the
alien removed from the United States without further
hearing or review...."); see also
Barajas-Alvarado, 655 F.3d at 1082 ("The
Immigration & Nationality Act (INA) precludes meaningful
judicial review of the validity of the proceedings that
result in an expedited removal order."). We therefore
conclude that Raya-Vaca exhausted all available
administrative remedies and was deprived of the opportunity
for judicial review.
Raya-Vaca, 771 F.3d at 1202. However, the defendant
still bears the burden of establishing legal prejudice from a
fundamentally unfair removal. Id.
contends he is relieved of the burden of proving prejudice if
he can show that his §11351 conviction did not qualify
as an aggravated felony. For this argument, Cervantes relies
on United States v. Aguilera-Rios, 769 F.3d 626, 637
(9th Cir. 2014) and United States v. Camacho-Lopez,
450 F.3d 928, 930 (9th Cir. 2006). Cervantes argues that
where a person is not legally removable on the grounds
alleged by immigration, the entry of the illegal order is, in
itself, a due process violation and prejudice. Cervantes is
Prejudice Can Be ...