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United States v. Alarcon-Garcia

United States District Court, D. Arizona

May 21, 2018

United States of America, Plaintiff,
v.
Arturo Alarcon-Garcia, Defendant.

          ORDER

          David G. Campbell, United States District Judge.

         Defendant Arturo Alarcon-Garcia is charged with illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b)(1). Doc. 10. Defendant has filed a motion to dismiss the indictment. Doc. 25. The motion is fully briefed, the Court heard oral argument on May 2, 2018, and the parties filed supplemental briefs. For the reasons stated below, the Court will grant Defendant's motion.

         I. Background.

         Defendant is a non-U.S. citizen who was convicted in Maricopa County Superior Court on July 8, 2002, of an aggravated assault in violation of A.R.S. §§ 13-1203 and 1204. Doc. 31-7 at 5-6. Although he was sixteen years old at the time, he was convicted as an adult pursuant to A.R.S. § 13-501. Id.; see also Doc. 31-1 at 2 (birth year). Defendant was sentenced to 3.5 years in state prison. Doc. 31-7 at 11-12.

         On January 15, 2004, the government gave notice to Defendant that it intended to administratively remove him from the United States because of the conviction. Doc. 31-6 at 2-3. The notice informed Defendant, who was 19 years old at the time, of his right to counsel (id. at 2), but there is no evidence that Defendant affirmatively waived this right. Defendant admitted the notice's allegations and waived his right to contest removal. Id. at 3.

         The government issued a Final Administrative Removal Order (“Order”) on March 24, 2005. Id. at 4. The Order found that Defendant had been convicted of an “aggravated felony” as defined in 8 U.S.C. § 1101(a)(43). Id. For this reason, the Order concluded that Defendant was removable under 8 U.S.C. § 1227(a)(2)(A)(iii). Id. The government removed Defendant from the United States on the same day. Id. at 7.

         Defendant subsequently returned to the United States and was convicted of illegal reentry twice. No. 2:16-cr-02029-WJ, Doc. 27 (D.N.M Aug. 4, 2016); No. 2:06-cr-00903-ROS, Doc. 44 (D. Ariz. Aug. 27, 2007). The government reinstated the Order and removed Defendant after each conviction. Doc. 31 at 2; Doc. 31-1 at 2.

         Defendant was arrested in the United States again on October 28, 2017, and allegedly admitted to illegal reentry. Doc. 31-1 at 3. This indictment followed. Doc. 10.

         II. Legal Standard.

         A defendant may challenge the validity of a removal order only after meeting the three elements of § 1326(d):

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) unless the alien 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 ...

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