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United States v. Ambriz

United States District Court, N.D. California

July 25, 2017

United States of America, Plaintiff,
v.
Gonzalo Ambriz, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT RE: DKT. NO. 10

          YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.

         The 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.)

         Now 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”).

         Having 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.

         I. Background

         Defendant 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.)

         The 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. (Id.)

         II. Legal Framework

         Defendant 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).

         III. Discussion

         Defendant 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.

         A. Fundamental Unfairness

         To 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 at 686.

         1. Due Process Violation

         Defendant 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 deportation relief.

         With regard to his waiver of his right to counsel, defendant fails adequately to explain why his waiver was not knowing or voluntary. Rather, ...


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