United States District Court, S.D. California
ORDER DENYING MOTION TO DISMISS INDICTMENT
T. Benitez, Judge
before the Court is Defendant's Motion to Dismiss the
Indictment. Upon review, this Court finds a valid underlying
removal order. Therefore, the motion to dismiss the
indictment is denied.
is charged with the crime of Attempted Reentry of a Removed
Alien in violation of 8 U.S.C. § 1326(a) and (b).
is a citizen of Mexico. He has never had lawful permanent
resident status (“LPR”). He is alleged to have
first entered the United States without inspection sometime
in 1994. On September 26, 2016, he was allegedly arrested in
the United States in Escondido, California following his
release from a San Diego County jail and is now charged with
being found in the United States after having been previously
says that on February 22, 2002 the immigration service issued
a Notice of Intent to Issue a Final Administrative Removal
Order. The Notice of Intent stated that Mr. Perez had been
convicted of a violation of Cal. Penal Code § 273.5
(Willful Infliction of Corporal Injury). It charged him with
removability under 8 U.S.C. § 1227(a)(2)(A)(iii),
conviction for an aggravated felony (i.e., that his
§ 273.5 conviction was an aggravated felony under 8
U.S.C. § 1101(a)(43)(F)). “Because it is not, and
he was not deportable as charged, ” argues Defendant,
“the indictment in this case must be dismissed.”
In response, the Government describes Defendant's
criminal history and history of removals:
~ On February 15, 2000, and May 3, 2000, Defendant was
convicted of two misdemeanor Inflict Corporal Injury on
Spouse/Cohabitant, Cal. Penal Code § 273.5(a) offenses.
~ On May 10, 2000, Defendant was convicted of Possession of
Cocaine, in violation of Cal. Health & Safety Code §
11350(A) and sentenced to 365 days' jail and 36
~ On March 8, 2001, Defendant's probation was revoked and
he was sentenced to 2 years prison.
~ On March 8, 200 L Defendant was convicted of felony Inflict
Corporal Injury on Spouse/Cohabitant Resulting in Traumatic
Condition, Cal. Penal Code § 273.5(a) and sentenced to 2
~ Following his prison sentence. Defendant was physically
removed to Mexico via the Calexico Port of Entry on March 22,
~ On September 3, 2002, Defendant was convicted of Second
Degree Burglary, Cal. Penal Code § 459, and sentenced to
16 months' prison.
~ After his sentence, Defendant was placed in reinstatement
removal proceedings and physically removed from the United
States via the San Ysidro Port of Entry on May 30, 2003.
~ On June 9, 2004, Defendant was arrested and charged with
attempted murder, Cal. Penal Code § 187(a). On December
2, 2004, Defendant pled no contest and was sentenced to 5
years' prison and an additional 3 years' prison for
the domestic violence great ...