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United States v. Mendoza-Mejia

United States District Court, E.D. Washington

February 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JULIO MENDOZA-MEJIA, Defendant.

          ORDER DENYING MOTION TO DISMISS INDICTMENT

          Rosanna Malouf Peterson United States District Judge

         A pretrial hearing was held in this matter on January 26, 2017. Defendant, who was present and in custody, was represented by Assistant Federal Defender Daniel J. Rubin. Assistant United States Attorney Matthew F. Duggan was present on behalf of the Government. Defendant presented argument regarding his Motion to Dismiss Indictment, ECF No. 20. After the hearing, the Court permitted Defendant to have the benefit of additional briefing. The Court has reviewed the briefing, the record, heard oral argument, and is fully informed.

         Defendant is charged with being an Alien in the United States After Deportation in violation of 18 U.S.C. § 1326, but now challenges the validity of his 2012 deportation. See ECF Nos. 1 and 20.

         BACKGROUND

         On November 28, 2012, Defendant was provided with a Notice to Appear in front of an Immigration Judge (IJ) to answer to the charge that he was then “an alien present in the U.S. who has not been admitted or paroled.” ECF No. 20 at 15. Defendant appeared before the IJ on December 11, 2012, as part of group removal proceedings and communicated with the assistance of a Spanish interpreter. Id. at 2. As confirmed by the audio recording of the hearing, Defendant was advised of his right to hire an attorney, he was provided with a list of attorneys who were willing to assist at little to no cost, and he was asked if he would like time to secure legal representation. Defendant waived his right to an attorney and confirmed that he would represent himself.

         Defendant answered a series of questions about his circumstances, admitting that he was a citizen of Mexico, but stating that he had two young children who are U.S. citizens. The prosecutor alleged that Defendant had been convicted for possession of cocaine, a conviction that Defendant now alleges does not exist, and for a DUI. However, when asked if he had been convicted of possessing cocaine, Defendant stated that he had.

         The IJ found Defendant ineligible for cancellation of removal and denied him voluntary departure as a matter of discretion. Subsequently, she ordered that Defendant be deported. The IJ asked Defendant if he would like to appeal her ruling to a higher court, and he unambiguously stated, “No.” Defendant now challenges that deportation order.

         ANALYSIS

         A defendant charged with violating 8 U.S.C. § 1326 may not challenge the validity of the underlying deportation order unless he demonstrates that “(1) the alien 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 the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d).

         Defendant did not appeal his 2012 removal, and, as discussed in further detail below, there is no basis to invalidate Defendant's explicit waiver of his right to do so. Therefore, as Defendant fails to clear the first of three statutory hurdles, the Court need not proceed further. However, as Defendant raises the issue of the validity of his appeal waiver, the Court addresses his other due process challenges.

         In order to succeed in his challenge to the underlying removal proceedings, Defendant must demonstrate that “(1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000) (internal quotations and citation omitted). In order to demonstrate prejudice, Defendant need not show that he would have obtained relief; “he must only show that he had a ‘plausible' ground for relief from deportation.” Id.

         Defendant raises three grounds to support a finding that his deportation was “fundamentally unfair”:

First, the IJ never obtained a knowing, intelligent, and voluntary waiver of the right to counsel. Second, the IJ failed to advise Mr. Mendoza-Mejia of his apparent eligibility for relief from removal. And, third, even though the IJ advised Mr. Mendoza-Mejia of his right to appeal she ...

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