United States District Court, N.D. California
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
INDICTMENT RE: DKT. NO. 10
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.
government indicted defendant Gonzalo Ambriz on February 2,
2017 for Illegal Reentry Following Deportation, pursuant to 8
U.S.C. section 1326. Specifically, the indictment charges
that defendant had been previously “excluded, deported
and removed from the United States” and then “was
found in the United States, with the Attorney General of the
United States and the Secretary for Homeland Security not
having expressly consented to a re-application by the
defendant for admission into the United States, in violation
of Title 8, United States Code, Sections 1326(a) and
(b).” (Dkt. No. 1 at 3-4.)
before the Court is defendant's motion to dismiss the
indictment due to an invalid deportation. Defendant bases his
motion to dismiss on his claim that the initial deportation
proceedings against him in 2006 were based on three
convictions that should not have qualified as aggravated
felonies for the purposes of the Immigration and Nationality
Act (the “INA”).
reviewed the indictment, the papers and exhibits submitted,
and the parties' arguments at the hearing on
defendant's motion held on July 21, 2017, and for the
reasons set forth more fully below, the Court
Denies defendant's motion.
is a citizen of Mexico, and was initially admitted into the
United States on November 13, 1989 as a lawful permanent
resident. (Dkt. No. 13 at 4-5.) On December 6, 2006, an
Immigration Judge (“IJ”) ordered him removed
based on multiple felony convictions related to trafficking
in illicit drugs. (Id. at 6.) Specifically, on
September 16, 2005, defendant was convicted in Contra Costa
County for possession of cocaine salt for sale,
methamphetamine for sale, and marijuana for sale in violation
of three California statutes. (Id. at 10-21.) On
such bases, the IJ ordered defendant removed to Mexico.
(Id. at 6.)
indictment in the instance action alleges that defendant has
since been apprehended and deported back to Mexico several
times, including on August 24, 2010, September 1, 2010, July
26, 2011, and November 20, 2014. (Dkt. No. 1 at 3.) On or
about August 7, 2016, defendant was again found in the United
States, in violation of his removal order. (Id.) On
February 2, 2017, a federal grand jury returned an indictment
charging defendant with one count of violating 8 U.S.C.
section 1326 for illegal re-entry into the United States.
may collaterally attack the removal order under the Due
Process Clause because it serves as a predicate element of
his illegal re-entry offense under section 1326. See
United States v. Valdavinos-Torres, 704 F.3d 679, 686
(9th Cir. 2012). To succeed in such a challenge, defendant
must demonstrate: “(1) he exhausted any administrative
remedies that may have been available to seek relief; (2) the
deportation proceedings from which the order issued
improperly denied him the opportunity for judicial review;
and (3) the order was fundamentally unfair.”
Id. (citing 8 U.S.C. § 1326(d)). “An
underlying removal order is ‘fundamentally unfair'
if a defendant's due process rights were violated by
defects in his deportation process, and he suffered prejudice
as a result.” Id. (citing United States v.
Reyes-Bonilla, 671 F.3d 1036, 1042-43 (9th Cir. 2012)).
The defendant has the burden of demonstrating each element.
See United States v. Gonzalez-Villalobos, 724 F.3d
1125, 1126, 1130 (9th Cir. 2013).
contends that he satisfies all three requirements to attack
his removal order collaterally. Specifically: First, the
order was fundamentally unfair because the immigration judge
did not ensure that defendant's waiver of counsel was
“knowing and voluntary” and failed to inform him
of opportunities for deportation relief, and defendant was
prejudiced as a result because it was plausible that he could
have avoided deportation. Second, although he did not appeal
the removal order, his waiver of the appeal was involuntary
and therefore does not present a bar to his collateral
attack. And third, he was deprived of judicial review because
his waiver of the same was “not considered or
intelligent.” The Court addresses each, below.
demonstrate that the order was fundamentally unfair,
defendant must show that his due process rights were violated
by defects in the deportation process and that he suffered
prejudice as a result. Valdavinos-Torres, 704 F.3d
Due Process Violation
argues that his due process rights were violated because the
IJ failed to (i) obtain a knowing and voluntary waiver of his
right to counsel and (ii) inform him of opportunities for
regard to his waiver of his right to counsel, defendant fails
adequately to explain why his waiver was not knowing or
voluntary. Rather, ...