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United States v. Cervantes

United States District Court, S.D. California

July 8, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
EDUARDO CERVANTES, Defendant.

          ORDER DENYING MOTION TO DISMISS INFORMATION

          Hon. Roger T. Benitez United States District Judge

         Now 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.

         I. BACKGROUND

         Cervantes 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.

         Cervantes 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.

         This 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.

         Based 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.

         II. CHALLENGING THE UNDERLYING REMOVAL ORDER

         Cervantes 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 denied.

         A. Collateral Attack Under §1326(d)

         An 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) are satisfied.

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).

         B. Exhaustion and Deprivation

         Cervantes 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.

         C. Prejudice

         Cervantes 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 partly correct.

         1. Prejudice Can Be ...


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