The opinion of the court was delivered by: Edward F. Shea United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS INDICTMENT
A pretrial conference occurred on January 27, 2011, in Yakima, Washington. Defendant Jesus Penaloza-Mejia was present, represented by Alison Guernsey. Gregory M. Shogren appeared on the United States Attorney's Office's (USAO) behalf. Before the Court was Defendant's Motion to Dismiss Indictment (ECF No. 27). After reviewing the submitted materials and relevant authority and hearing argument, the Court was fully informed and granted Mr. Penaloza-Mejia's motion. This Order memorializes and supplements the Court's oral rulings.
On February 1, 2007, the Department of Homeland Security (DHS) issued a Notice to Appear for Mr. Penaloza-Mejia, alleging that he was illegally present in the United States after having entered without inspection, in violation of 8 U.S.C. § 1182(a)(6)(A)(i). (ECF No. 28, Ex. A.) That same day, Mr. Penaloza-Mejia signed the certificate of service and requested an immediate hearing before an Immigration Judge (IJ). Id. No hearing was ever held. Instead, on February 5, 2007, and without the benefit of counsel, Mr. Penaloza-Mejia signed a stipulated order of removal, agreeing to removal, and waiving his rights to a hearing before an IJ and to appeal the removal. Id. Ex. B. Without having appeared before an IJ and based on this stipulation, Mr. PenalozaMejia was ordered removed from the United States on February 7, 2007, and was subsequently removed on February 9, 2007.
On November 2, 2010, Mr. Penaloza-Mejia was indicted in this Court on one count of being an alien in the United States following deportation, in violation of 8 U.S.C. § 1326. (ECF No. 1.) The Indictment is based on the February 9, 2007 removal date. Id.
Under 8 U.S.C. § 1326(a), an alien is criminally liable if he is found in the United States after he "has been denied admission, excluded, deported, or removed," without consent of the Attorney General or other advance consent. "In a criminal prosecution under § 1326, the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation." United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998), overruled on other grounds by United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc). If the district court finds that "(1) [the defendant's] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects," the deportation stemming from the defective proceedings may not be used ORDER * 2 to prove the defendant violated § 1326. United States v. Ramos, 623 F.3d 672, 680 (9th Cir. 2010) (quoting United States v. Palares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004)); see generally United States v. Mendoza-Lopez, 481 U.S. 828 (1987).
Mr. Penaloza-Mejia moves the Court to dismiss the § 1326 charge against him because the deportation relied upon in the Indictment violated his due process rights. Mr. Penaloza-Mejia argues first, that he was denied due process during the 2007 deportation proceedings because the IJ did not make a pre-removal finding that he voluntarily, knowingly, and intelligently waived his right to a hearing; and second, that he was prejudiced by this due-process denial because it prevented him from seeking voluntary departure. The USAO does not dispute that the underlying deportation proceedings were defective. But it argues that Mr. Penaloza-Mejia cannot show prejudice because voluntary departure was not a plausible form of relief: his Washington conviction for Third Degree Child Molestation in violation of RCW 9A.44.089 made him ineligible for voluntary departure. The Court addresses Mr. PenalozaMejia's arguments below.
A. Defective Deportation Proceeding
Mr. Penaloza-Mejia argues that his 2007 deportation, which was executed pursuant to 8 U.S.C. § 1229a(d)'s stipulated removal process, was defective because he did not validly waive his right to a prompt hearing before an IJ. The USAO concedes that the underlying removal process was defective; however, the Court nevertheless reaches the merits and finds that Mr. Penaloza-Mejia suffered a due process violation.
Aliens in the United States are guaranteed procedural due process rights, which include the opportunity to be heard concerning their status and possible removal. Sung v. McGrath, 339, U.S. 33 (1950). An alien's due process rights may, however, be validly waived as long as the waiver is "both 'considered and intelligent.'" Ramos, 622 U.S. at 680 (quoting United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000)). "The government bears the burden of proving valid waiver in a collateral attack of the underlying removal proceeding," and a court reviewing the immigration record must "'indulge every reasonable presumption against waiver.'" Id. (quoting United States v. Lopez-Vasquez, 1 F.3d 751, 753 (9th Cir. 1993)).
Although most authority on due process waiver examines an alien's rights to counsel and appeal, courts have found a due process violation where the hearing was deficient. See, e.g., Ramos, 623 F.3d at 681-82 (holding defendant's underlying removal order procedurally defective because he "lacked the benefit of counsel or a hearing before the IJ"); United States v. Crisostomo-Rios, No. CR-10-2060-FVS, 2010 WL 3433906, at *2 (E.D. Wash. Aug. 31, 2010) (finding underlying deportation proceedings deficient based on IJ's failure to make a finding that the defendant had voluntarily, knowingly, and intelligently waived his right to a hearing); United States v. Gomez-Hernandez, No. CR-08-6005-FVS, 2008 WL 2096876, at *4 (E.D. Wash. May 16, 2008) (finding the IJ's "failure to obtain a voluntary, knowing, and intelligent waiver of the Defendant's right to a hearing" violated due process).
Here, Mr. Penaloza-Mejia was deported without a hearing, based on his signing of a stipulation for order of removal pursuant to 8 U.S.C. § 1229a(d) and its implementing regulation, 8 C.F.R. § 1003.25. Under 8 C.F.R. § 1003.25, an IJ may, after review of the charging document, written stipulation, and supporting documents, enter an order of deportation without a hearing and in the absence of the parties. 8 C.F.R. § 1003.25. "If the alien is unrepresented, the [IJ] must determine that the alien's waiver is voluntary, knowing, and intelligent." Id.
Although an IJ may find a waiver to be voluntary, knowing, and intelligent on the record, neither the IJ's order nor the documentary record reflected such a waiver in this case. Here, Mr. Penaloza-Mejia requested a prompt hearing before an IJ. (ECF No. 28, Ex. A.) After four days in custody and without counsel present, Mr. Penaloza-Mejia signed a stipulated request for order of removal, thereby waiving his "right to a personal hearing before an [IJ]." (ECF No. 28, Ex. B.) Mr. Penaloza-Mejia signed the stipulation "because the immigration officer stated that [he] could be deported immediately if [he] signed the stipulation." Id. Ex. E. The record lacks any evidence that the IJ engaged in any fact-finding efforts to determine whether Mr. PenalozaMejia's waiver of his right to a hearing was knowing, voluntary, and intelligent. See ECF No. 28, Ex. C. And without counsel present, it is wholly unclear whether Mr. Penaloza-Mejia read or understood the consequences of signing the form. See United States v. Galicia-Gonzalez, 997 F.2d 602, 603 (9th Cir. 1993) (finding no due-process violation when an alien's immigration counsel signed the stipulated order of removal and submitted a declaration indicating that ...