United States District Court, E.D. Washington
ORDER DENYING MOTION TO DISMISS INDICTMENT
Rosanna Malouf Peterson United States District Judge
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.
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.
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.
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.
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.
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. §
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.
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
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