United States District Court, S.D. California
ORDER DENYING MOTION TO DISMISS § 1326
PROSECUTION [DKT. NO. 16]
Gonzalo P. Curiel United States District Judge.
Jose Luis Avalos-Perez moves to dismiss the indictment
against him on the grounds that his two prior removals were
invalid and cannot support a prosecution under 8 U.S.C.
§ 1326. Dkt. No. 16. Upon review of the moving papers
and the applicable law, and for the reasons discussed below,
the Court DENIES the motion.
December 6, 2016, a federal grand jury in this district
returned an indictment charging Defendant Avalos-Perez with
Attempted Reentry of Removed Alien, in violation of 8 U.S.C.
§§ 1326(a) and (b). Dkt. No. 11.
alias Saul Flores-Cosio, was born in Michoacan, Mexico on
April 14, 1963. Def.'s Ex. G, Dkt. No. 16-2; Def.'s
Ex. A, Dkt. No. 16-2. Although Avalos-Perez “grew
up” in Mexico he came to the United States as a
teenager and lived for a time in Escondido, California.
Def.'s Ex. A, Dkt. No. 16-2. He later moved to Fresno,
California, then back to Escondido, and later on to Stockton,
California. Id. For about five years, Avalos-Perez
worked in agriculture, farming avocados, grapes, and citrus.
in the United States, Defendant amassed a criminal record. He
was convicted of misdemeanor illegal entry under 8 U.S.C.
§ 1325 on February 7, 1986, December 19, 1986, March 2,
1989, and September 19, 1989. Govt.'s Resp., Dkt. No. 21
at 3. He was also convicted of misdemeanor possession of a
controlled substance, in violation of Cal. Health &
Safety Code § 11350, on December 12, 1988; obstruction
of a police officer on May 5, 1995; and evasion of a police
officer, a felony, on June 6, 1995 in violation of Cal. Veh.
Code § 2800.2. Id.
Stipulated Removal under 8 U.S.C. § 1229a(d)
March 8, 2007, the Immigration and Naturalization Service
(INS) issued a Notice to Appear (NTA) for removal proceedings
under Section 240 of the Immigration and Nationality Act
(INA), 8 U.S.C. § 1229a. Def.'s Ex. B, Dkt. No.
16-2. The NTA alleged that Avalos-Perez entered the United
States at or near Tecate, California on or about March 4,
2007 without being admitted or paroled after inspection by an
Immigration Officer. Id. The NTA charged that he was
subject to removal under Section 212(a)(6)(A)(i) of the INA,
8 U.S.C. § 1182(a)(6)(A)(i) (noncitizens present without
being admitted or paroled are inadmissible).
same day, Avalos-Perez entered into a Stipulated Request for
Removal Order and Waiver of Hearing with the United States
Department of Justice, Executive Office for Immigration
Review. Def.'s Ex. C, Dkt. No. 16-2. In the Request,
Avalos-Perez waived his right to have a hearing before an
Immigration Judge (“IJ”), admitted all of the
factual allegations contained within the NTA, and waived his
right to appeal the written order of removal. Id.
This Stipulated Request was followed by a Government's
Concurrence to Stipulated Request For Removal Order and
Waiver of Hearing, Def.'s Ex. D, Dkt. No. 16-2, and a
Decision and Order of the Immigration Judge that ultimately
approved the Stipulated Request, Def.'s Ex. E, Dkt. No.
16-2. In the Decision and Order, the Immigration Judge
ordered that Avalos-Perez be removed from the United States
to Mexico pursuant to Section 240(d) of the INA, 8 U.S.C.
Expedited Removal under 8 U.S.C. § 1225(b)(1)
under a week later, on March 14, 2007, Avalos-Perez received
a Notice and Order of Expedited Removal (NER) in a Section
235(b)(1) removal, 8 U.S.C. § 1225(b)(1). Def.'s Ex.
F, Dkt. No. 16-2. The NER charged that Defendant was
inadmissible under Section 212(a)(7)(A)(i)(I) of the INA
(visa issued without compliance) and further stated that
an immigrant not in possession of a valid unexpired immigrant
visa, reentry permit, border crossing card, or other valid
entry document required by the Immigration and Nationality
Act; to wit: You have entered the United States illegally
with the intent of residing in Los Angeles, California for
the purpose of employment.
Id. During the processing, Avalos-Perez completed a
Record of Sworn Statement in Proceedings (“Sworn
Statement”). Def.'s Ex. G, Dkt. No. 16-2. In it, he
admitted that he did not have any legal authority to enter or
work in the United States, that he had never applied for
legal status, and that he had no family residing in the
United States. Id. He added that he had entered the
U.S. illegally in order to work and that he had last entered
the United States “three days ago, through the
mountains.” As part of the expedited removal
proceeding, Avalos-Perez also completed, and signed, a Jurat
for Record of Sworn Statement. Def.'s Ex. H, Dkt. No.
16-2. The Jurat stated that Avalos-Perez left Mexico
“to go to Los Angeles to get money from his family and
work” and that he had no fear or concern that he would
be harmed if returned to his home country. Id.
processing, the INS ordered Defendant removed from the United
States pursuant to Section 235(b)(1) of the INA. Def.'s
Ex. F, Dkt. No. 16-2. The Order became final on March 14,
challenges his indictment under 8 U.S.C. § 1326 by
contesting the validity of his March 8, 2007 and March 14,
2007 removals, both of which could serve as the predicate
offense in a § 1326 prosecution. Defendant argues that
because both his March 8 and March 14 removals were invalid,
neither can serve as a basis for his § 1326
prosecution. Def.'s Mot. Dismiss
(“DMD”), Dkt. No. 16 at 1. As discussed below,
however, Avalos-Perez cannot avoid the § 1326
prosecution because the March 14 removal is valid.
Collateral Attack under § 1326(d)
Mendoza-Lopez the Supreme Court held that the only
way to attack the validity of a deportation or removal order
relied upon in a § 1326 prosecution is to argue that the
issuance of the order violates the noncitizen's due
process rights. See U.S. v. Mendoza-Lopez, 481 U.S.
828, 837 (1987). This right to challenge the validity of a
prior deportation removal order is codified at 8 U.S.C.
§ 1326(d). See U.S. v. Gonzalez-Flores, 804
F.3d 920, 926 (9th Cir. 2015).
§ 1326(d), a noncitizen must satisfy three requirements
in order to successfully challenge a removal order. The
individual must show (1) that he exhausted administrative
remedies that may have been available to seek relief against
the order; (2) that the removal proceedings improperly
deprived him of the opportunity for judicial review; and (3)
that the entry of the order was fundamentally unfair. 8
U.S.C. § 1326(d); see also Gonzalez-Flores, 804
F.3d at 926.
Administrative Exhaustion & Deprivation of Judicial
has satisfied the first two prongs of § 1326(d),
requiring a defendant to demonstrate that he exhausted
available administrative remedies and that the removal
proceeding deprived him of an opportunity for judicial
review. See 8 U.S.C. § 1326(d)(1),
removals of inadmissible arriving noncitizens, like
Avalos-Perez, do not provide for administrative review except
in the instance of a noncitizen claiming asylum or claiming
to be a legal permanent resident. 8 U.S.C. §
1225(b)(1)(C); see also U.S. v. Barajas-Alvarado,
655 F.3d 1077, 1081 (9th Cir. 2011). As Avalos-Perez was
neither at the time of the expedited removal order, the Court
concludes that there were no administrative remedies
available for Avalos-Perez to exhaust.
As to a
meaningful opportunity for judicial review, that too is
foreclosed by expedited removal proceedings brought under 8
U.S.C. § 1225. “Congress expressly deprived courts
of jurisdiction to hear a direct appeal from an expedited
removal order.” Barajas-Alvarado, 655 F.3d at
1081; 8 U.S.C. § 1252 (“Judicial review of orders
of removal”); see also 8 U.S.C. § 1225(b)
(“If an immigration officer determines that an alien .
. . who is arriving in the United States . . . is
inadmissible under section 212(a)(6)(C) or 212(a)(7), the
officer shall order the alien removed from the United States
without further hearing or review . . . .”).
Accordingly, Barajas-Alvarado specifically concluded
that “the INA precludes meaningful judicial review of
the validity of the proceedings that result in an expedited
removal order [under 8 U.S.C. § 1225].” As such,
this Court likewise concludes that the nature of
Avalos-Perez's removal proceeding deprived him of any
meaningful judicial review.
order to establish that a predicate removal was
“fundamentally unfair, ” a noncitizen must
demonstrate that the proceeding (1) violated the
noncitizen's due process rights and (2) that the
noncitizen suffered prejudice as a result.
Barajas-Alvarado, 655 F.3d at 1085. To establish
prejudice, a noncitizen must demonstrate that grounds for
relief were plausibly available at the time of removal.
alleges that the March 14 expedited removal was invalid
because he was administratively processed without a qualified
interpreter, without being advised of available relief, and
without the opportunity to review his sworn statement. DMD,
Dkt. No. 16 at 10. Avalos-Perez further asserts that the was
prejudiced by these due process violations because he
plausibly would have been eligible to withdraw his
application for admission, thus avoiding any final removal
order. Id. at 16.
any due process violations, however, this Court concludes
that Defendant has failed to demonstrate that he was
plausibly eligible for relief from removal. Accordingly,
Defendant did not suffer any prejudice as a result of the
alleged due process violations and, thus, he ...