The opinion of the court was delivered by: B. Lynn Winmill Chief Judge United States District Court
MEMORANDUM DECISION AND ORDER
The Court has before it Nicolas Covarrubias- Mendoza's Motion to Dismiss the Government's Indictment. (Dkt. 15). For the reasons explained below, the Court will grant the motion.
Nicolas Covarrubias-Mendoza ("Covarrubias") is a citizen of Mexico. Govt.'s Ex. 1 at 1, Dkt. 17-1. On April 16, 1994, at the age of thirteen, Covarrubias was admitted to the United States as a lawful permanent resident (LPR). Def's Ex. A, Dkt. 15-2.
On September 16, 1999, Covarrubias was convicted of driving without privileges. Govt.'s Ex. 2 at 11, Dkt. 17-2. In August 2000 Covarrubias was convicted of both shooting from or across a public highway and malicious injury to property. Id. at 9. Three months later, on December 4, 2000, Covarrubias was convicted of possession of drug paraphernalia with intent to use, as well as alcohol beverage possess/consume by a minor.
Id. at 7. Covarrubias was also convicted of third-degree felony robbery on September 27, 2001, in Malheur County, Oregon and was sentenced to nine months jail. Govt.'s Ex. 3 at 1, Dkt. 17-3.
On July 31, 2003, Covarrubias was served with a notice to appear for removal proceedings, which asserted that he was subject to removal from the United States due to a conviction for an offense that involved firearms. Def's Ex. B, Dkt. 15-3. Covarrubias initially appeared before an immigration judge (IJ) on August 4, 2003, in Portland, Oregon, and requested time to obtain an attorney. Def.'s Ex. C at 4-5, Dkt. 15-4. Covarrubias was granted his request and the hearing was continued. Id.
Covarrubias next appeared before the IJ on August 6, 2003, with a pro bono attorney. Def.'s Ex. B at 8, Dkt. 15-3. The attorney requested a one-week continuance so that Covarrubias could have more time to find an attorney. Def. Ex.C at 8-9, Dkt. 15-4. The IJ granted this continuance. Id. at 9. The pro bono attorney also indicated to the IJ that Covarrubias appeared to be eligible for cancellation of removal. Id. at 8-9.
Removal proceedings against Covarrubias resumed on August 13, 2003, where he was once again represented by a pro bono attorney. Id. at 15. The IJ determined that Covarrubias was eligible to apply for cancellation of removal. Id. at 17-18. Covarrubias expressed his desire to apply for cancellation of removal. Id. at 17.
The following week, with assistance from his attorney, Covarrubias submitted an application for cancellation of removal and the IJ set the matter for an evidentiary hearing. Id. at 23. On October 22, 2003, Covarrubias appeared pro se, where the IJ considered his application for cancellation of removal. Id. at 29. After speaking with Covarrubias and considering the evidence presented, the IJ declined to grant cancellation of removal. Id. at 88. Covarrubias was ordered removed to Mexico at the conclusion of the hearing. Def.'s Ex. E, Dkt. 15-6. On October 28, 2003, Covarrubias was removed to Mexico. Def.'s Ex. F, Dkt. 15-7.
Covarrubias claims, and the Government concedes, that the IJ who entered the removal order on October 22, 2003 failed to advise Covarrubias concerning his eligibility to seek voluntary departure. Def.'s Mem. at 5-7, Dkt. 15-1, Govt.'s Mem. at 2, Dkt. 17.
Covarrubias re-entered the United States on or about November 12, 2003. Def. Ex. G, Dkt. 15-8. The removal order issued in October 2003 was reinstated on November 26, 2003 and Covarrubias was again removed to Mexico. Id. Covarrubias again re-entered the United States on January 27, 2009, and was once again removed based on reinstatement of the October 2003 removal order. Def.'s Ex. H, Dkt. 15-9.
On March 13, 2012, Covarrubias was charged with illegal re-entry in violation of 18 U.S.C. § 1326. Govt.'s Indictment, Dkt. 1. The United States Government bases this Indictment upon a removal order entered October 6, 2008, which was the reinstatement of the previous removal order entered in 2003. Def.'s Ex. H, Dkt. 15-9. Covarrubias has filed a motion to dismiss the Indictment. Def.'s Mem., Dkt. 15-1. Covarrubias seeks dismissal on the grounds that the removal order entered on October 22, 2003, entered as it was without a full advisement of eligibility to seek voluntary departure, violated his right to due process, resulting in prejudice. Id. at 5.
Under 8 U.S.C. § 1326, a defendant charged with illegal re-entry after removal may collaterally attack the removal order. United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987). To sustain a collateral attack, a defendant must demonstrate that (1) he "exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). An underlying removal order is fundamentally unfair if: (1) defects in the underlying deportation proceeding violated a defendant's due process rights and (2) the defendant was prejudiced because of such defects. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). If a defendant successfully demonstrates prejudice, the burden shifts and the government may attempt to show that that the procedural violation could not have changed the outcome. United States v. Gonzalez-Valerio, 364 F.3d 1051, 1054 (9th Cir.2003).