United States District Court, D. Oregon
OPINION AND ORDER
ANN AIKEN, District Judge.
On July 17, 2013, defendant was indicted for illegal reentry in violation of 8 U.S.C. 1326(a). The indictment alleges that defendant illegally reentered the United States following his previous deportation on February 22, 2012. Defendant moves to dismiss the indictment on grounds that his initial removal proceedings underlying the indictment were defective. The government contends that defendant has not shown that he exhausted his administrative remedies, that the proceedings were fundamentally unfair, or that he suffered prejudice as a result. See 8 U.S.C. § 1326(d).
On July 24, 2006, defendant was issued a Notice to Appear informing him that Immigration and Custom Enforcement (ICE) believed he was subject to deportation. See Gov't Response, Ex. A. The Notice specifically alleged that on April 11, 2005, defendant had been convicted of possession of methamphetamine in violation of state law, and that his conviction rendered him subject to removal under the Immigration and Nationality Act. Defendant requested an immediate hearing. According to defendant, he was taken into custody by ICE and detained for two to three weeks in a small, crowded cell with two or three other people.
At his hearing before an Immigration Judge (IJ), defendant waived his right to counsel and stated that he understood his right to examine evidence and his right to appeal, which apparently had been provided previously. See Def. Ex. 101 at 1-2 (transcript of removal proceedings). Defendant also acknowledged that he had received the Notice to Appear. The IJ then recited the charge, which defendant acknowledged that he understood, and referenced documentation submitted by defendant indicating that he wanted to be deported as soon as possible. Id. at 2-3.
The IJ asked defendant if he admitted the April 11, 2005 conviction alleged in the notice to appear, and defendant stated that he admitted the conviction. The IJ advised defendant that he could find the charge to be correct based on defendant's admission and without any evidence from the government. Id. at 3. Defendant agreed that the charge was correct. Id.
The IJ then informed defendant that he was eligible to apply for cancellation of removal. Id. at 4-5. Defendant indicated he did not wish to apply for such relief. The IJ explained that declining to apply for cancellation of removal would result in defendant's permanent exclusion from the United States and asked if defendant still wished to forgo this right. Id. at 5. Defendant asked if he could be released pending a challenge to his removal. The IJ advised defendant that he could have a bond hearing, but, based on the drug charge, he was probably subject to mandatory custody. Id.
After a discussion of the difficulties defendant would face if he did not seek cancellation of removal, defendant reaffirmed his decision to forgo that opportunity. Id. at 5-6. Defendant also waived his right to seek voluntary departure and to appeal the removal order.
After his removal, defendant returned to the United States. In 2007, he was identified by immigration authorities and deported. He returned again, and according to the government, in 2010 he was convicted of endangering the welfare of a minor, a misdemeanor. The government also maintains that in 2011, defendant committed two probation violations and was ultimately convicted of unlawful possession of methamphetamine.
In February 2012, defendant was convicted of illegal reentry in this court. United States v. Garcia-Yepez, 3:11-cr-00514-JO. Defendant's plea agreement in that case acknowledged the lawfulness of his initial removal. Defendant was sentenced to time served and deported.
Defendant again returned to the United States, leading to the current charge against him.
"A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has a due process right to bring a collateral attack challenging the validity of his underlying deportation order because it serves as a predicate element of his conviction." United States v. Melendez-Castro , 671 F.3d 950, 953 (9th Cir. 2012) (per curiam). To successfully do so, a defendant must establish that: 1) the defendant exhausted any administrative remedies available "to seek relief against the order"; 2) the removal proceedings "improperly deprived" defendant of the "opportunity for judicial review" of the removal order; and 3) entry of the removal order was "fundamentally unfair." 8 U.S.C. § 1326(d).
Here, defendant argues that his removal and deportation on August 7, 2006 was defective because: 1) the IJ conducted a "perfunctory hearing" and erroneously informed defendant that he was subject to mandatory detention; 2) defendant's California controlled substance offense was a not deportable offense; 3) no document of defendant's conviction was admitted in ...