The opinion of the court was delivered by: U. S. District Judge Honorable Edward J. Lodge
Before the Court in the above-entitled matter is the Defendant's Motion to Dismiss Indictment filed on April 25, 2012. (Dkt. 15.) 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
The Defendant Daniel Rodriguez-Perez applied for and was granted temporary resident status in the United States on April 22, 1988 as a Special Agricultural Worker ("SAW") under § 210 (8 U.S.C. § 1160) of the Immigration and Nationality Act ("INA"). On October 17, 1991 Mr. Rodriguez's status was adjusted to that of Lawful Permanent Resident ("LPR").
Thereafter, on June 9, 1994, Mr. Rodriguez was convicted of Conspiracy to Traffic in Heroin and sentenced to ten years in prison with three years determinate. The Immigration and Naturalization Service issued an Order to Show Cause alleging Mr. Rodriguez was subject to deportation as a result of the conviction. On July 10, 1995, Mr. Rodriguez appeared before an Immigration Judge ("IJ"). The proceedings began as a group hearing with general advisements being given to all who were appearing. The IJ made inquiries of individuals, including Mr. Rodriguez, concerning the particulars of their Orders to Show Cause and eventually determined Mr. Rodriguez was deportable. The IJ then addressed the relief from deportation for those aliens who had LPR status.
In his remarks to another alien similarly situated to Mr. Rodriguez having attained LPR status through the SAW program, the IJ discussed the qualifications for waiver under § 212(c). The IJ determined neither that alien nor Mr. Rodriguez qualified for § 212(c) relief because they had not satisfied § 212(c)'s seven year domicile requirement; concluding both aliens' years of residency under the SAW program did not count towards the required seven years of domicile by distinguishing a recent decision in Ortega de Robles v. INS, 58 F.3d 1355, 1359 (9th Cir. 1995). Mr. Rodriguez was then ordered to be deported. The IJ advised him of his right to appeal and Mr. Rodriguez waived the same. After serving the remainder of his state prison sentence, Mr. Rodriguez was deported on April 4, 1996.
Thereafter, on January 11, 2005, Mr. Rodriguez was found in South Carolina and indicted for illegal re-entry under 8 U.S.C. § 1326(a) and (b)(2). Mr. Rodriguez plead guilty to the charge and, on June 15, 2005, was sentenced to 33 months in prison. He was again removed on June 28, 2007 pursuant to a reinstatement of the prior order of deportation entered on July 10, 1995. Most recently, on November 22, 2011, Mr. Rodriguez was located in the District of Idaho which led to the charge filed in this case.
The Indictment charges the Defendant Daniel Rodriguez-Perez with Deported Alien Found in the United States in violation of 8 U.S.C. § 1326(a) and (b) stating:
On or about November 21, 2011, in the District of Idaho, the defendant, Daniel Rodriguez-Perez, an alien, was found in the United States, to wit: Ada County, Idaho, after having been previously removed from the United States to Mexico on or about June 28, 2007, at or near Laredo, Texas, 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. 1.) Following his arraignment, Mr. Rodriguez filed the instant Motion to Dismiss collaterally attacking the underlying deportation order. The Motion contends Mr. Rodriguez's July 10, 1995 deportation, upon which this charge is based, violated his due process rights. (Dkt. 15.) The Court has reviewed the materials submitted on the Motion and finds as follows.
The Motion to Dismiss is brought 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;' ...