The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
Before the Court in the above-entitled matter is the Defendant's Motion to Dismiss Indictment filed on July 22, 2011. The parties have filed responsive briefing and the matter is now ripe for the Court's consideration. Having fully reviewed the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this Motion shall be decided on the record before this Court without oral argument.
FACTUAL AND PROCEDURAL BACKGROUND
On July 15, 1998, Immigration and Nationalization Service (INS) initiated deportation proceedings against Ramon Arciniega-Meda by issuing a Notice of Intent to Issue a Final Administrative Removal Order ("Notice of Intent"). (Dkt. 13-2, Ex. A.) The Notice of Intent stated Mr. Arciniega would be subject to expedited administrative removal proceedings based on the fact that he had been previously convicted on August 18, 1997 in the state of California of Transportation of Marijuana, which INS determined was an aggravated felony. The following day, INS issued a Final Administrative Removal Order based on the same conclusions as the Notice of Intent that ordered Mr. Arciniega to be removed from the United States. (Dkt. 13-3, Ex. B.) On August 7, 1998, Mr. Arciniega was deported to Mexico. (Dkt. 13-4, Ex. C.)
The Indictment filed in this case, on June 15, 2011, charges the Defendant Ramon Arciniega-Meda with Deported Alien Found in the United States in violation of 8 U.S.C. § 1326(a) and (b) stating:
On or about May 26, 2011, in the District of Idaho, the defendant, Ramon Arciniega-Meda a/k/a Jose Ramon Arciniega-Meda, an alien, was found in the United States, to wit: Owyhee County, Idaho, after having been previously removed from the United States to Mexico on or about August 7, 1998, at or near Calexico, California, the said defendant having not obtained the consent of the Secretary of the Department of Homeland Security for reapplication for admission into the United States, in violation of Title 8, United States Code, Section 1326(a) and (b). (Dkt. No. 1.) Following his arraignment, Mr. Arciniega filed the instant Motion to Dismiss collaterally attacking the underlying deportation order. The Motion contends Mr. Arciniega's August 7, 1998 deportation, upon which this charged is based, violated his due process rights. (Dkt. 13.) The parties filed their briefing on the Motion as well as supplemental briefing in relation to additional documents the Government filed in the record. The Court has reviewed these materials and finds as follows.
Mr. Arciniega brings his motion pursuant to § 1326(d). "Because the underlying removal order serves as a predicate element of an illegal re-entry offense under § 1326, a defendant charged with that offense may collaterally attack the removal order under the due process clause." United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004); see also United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004) (citing United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987) (finding a prior deportation order cannot serve as a predicate for a subsequent prosecution under 8 U.S.C. § 1326 when the deportation proceedings giving rise to the order were fundamentally flawed)). "[U]nder 8 U.S.C. § 1326(d), a defendant may collaterally attack the underlying removal order by showing first, exhaustion of 'any administrative remedies that may have been available to seek relief against the order;' second, that 'the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review;' and third, that 'the entry of the order was fundamentally unfair.'" United States v. Ramos, 623 F.3d 672, 680 (9th Cir. 2010) (quoting 8 U.S.C. § 1326(d)); see also Pallares-Galan, 359 F.3d at 1095 (citing 8 U.S.C. § 1326(d)); Ubaldo-Figueroa, 364 F.3d at 1048.
As to the first and second requirements, the Court finds neither bars collateral review where, as here, Mr. Arciniega was not informed that he was eligible for relief from removal. See United States v. Ortiz-Lopez, 385 F.3d 1202, 1203-04 (9th Cir. 2004). Likewise, Mr. Arciniega was denied meaningful judicial review and denied his due process rights in the underlying deportation proceedings because he was not informed that he was eligible for the voluntary departure in lieu of removal. See id.; Ubaldo-Figueroa, 364 F.3d at 1049-50. Thus, the issue here turns on the third requirement, whether Mr. Arciniega can show the entry of the order was fundamentally unfair. Ramos, 623 F.3d at 680 (quoting 8 U.S.C. § 1326(d)).
"An underlying removal order is fundamentally unfair if an alien's 'due process rights were violated by defects in the underlying deportation proceeding,' and if 'he suffered prejudice as a result of the defects.'" Ramos, 623 F.3d at 680 (quoting Pallares-Galan, 359 F.3d at 1095); see also Ubaldo-Figueroa, 364 F.3d at 1048; United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir. 2000). To show prejudice, a defendant "must only show that he had a plausible ground for relief from deportation." Ubaldo-Figueroa, 364 F.3d at 1050 (internal quotation marks omitted).
The Government argues Mr. Arciniega cannot show the Notice of Intent and Order of Deportation were not deficient, fundamentally unfair, or that he was prejudiced because his prior conviction is an aggravated felony making him ineligible for voluntary departure. (Dkt. 16 at 5.) Mr. Arciniega argues the Notice of Intent and Order of Deportation violated his Due Process rights and he suffered prejudice as a result because they erroneously concluded that his prior conviction was an aggravated felony subjecting him to expedited administrative removal under 8 U.S.C. § 1228(b). (Dkt. 13 at 2-3.) Under the expedited administrative removal process an individual who has a prior aggravated felony is considered deportable without appearing before an immigration judge, having a hearing, and being advised of any other possible forms of relief to deportation. See 8 U.S.C. § 1228(b). This conclusion precluded him from having a deportation hearing where an immigration judge would have been advised of the voluntary departure option and, had he exercised it, he would not have a prior deportation on his record which makes up the § 1326 charge in this case. (Dkt. 13-1 at 10.)
Voluntary departure is precluded from only two classes of immigrants, "those involved in terrorism-related activity (not at issue here), and those ... convicted of an aggravated felony." Ortiz-Lopez, 385 F.3d at 1204 n. 3 (internal quotation marks omitted). Thus, the question here is whether Mr. Arciniega's Transportation of Marijuana conviction was an aggravated felony. If so, voluntary departure was unavailable to Mr. Arciniega in the underlying deportation proceedings and the use of the expedited ...