United States District Court, D. Arizona
G. Campbell, United States District Judge.
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.
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.
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.
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.
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.
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.
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 ...