United States District Court, D. Arizona
HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE
moved to dismiss the Indictment against him in the matter
(Doc. 14, Mot.). Defendant challenges the validity of the
removal order underlying the Indictment pursuant to 8 U.S.C.
§ 1326(d). The Government filed a response to
Defendant's Motion (Doc. 17, Resp.), and Defendant then
filed a Reply (Doc. 20, Reply). For the following reasons,
the Court grants the Motion.
was born in Mexico but came to the United States as a small
child with his mother and step-father. (Mot. Ex. 1.) He has
never had any legal status in the United States. He has three
brothers, though one is deceased. (Resp. at 8.) He lived in
California until his removal in June 2012. (Mot. at 2.)
Additionally, he is fluent in English. (Mot. Ex. 1.)
has four children, though only his oldest had been born at
the time of the challenged removal proceeding. (Mot. at 2.)
Defendant did not graduate from high school, and at the time
of his removal hearing, he worked as a seasonal worker.
(Resp. at 8.) Defendant's entire criminal history prior
to his removal hearing is unclear, but he had no immigration
history before the hearing. (Mot. at 17.)
Defendant's Conviction Underlying Prior Removal
30, 2012, Defendant was served with a Notice to Appear
charging him with being removable from the United States
under INA § 212(a)(6)(A)(i) (being an alien present in
the United States without having been admitted or paroled).
(Mot. Ex. 3.) Defendant was also charged with removability
under INA § 212(a)(2)(A)(i)(I) (being an alien convicted
of a crime involving moral turpitude). (Mot. Ex. 3.)
Motion centers on his crime involving moral turpitude-Child
Endangerment, in violation of Section 273a(a) of the
California Penal Code. (Mot. Ex. 2.) On July 13, 2010, Defendant
was charged via Information with Count One-Child Endangerment
with a Special Allegation of personal infliction of great
bodily injury under circumstances involving domestic
violence. (Mot. Ex. 2.). He was also charged with Count
Two-Assault with Great Bodily Injury. (Mot. Ex. 2.). His
oldest child was the victim of Defendant's crime that is
the subject of this motion. (Resp. at 8.) In October 2010,
Defendant pled no contest to Count One and was sentenced to
four years in prison. (Mot. Ex. 2.) Defendant was not
convicted of the Special Allegation. (Mot. Ex. 2.)
the charging document nor the judgment specify the conduct
Defendant pled to. (Mot. Ex. 2.) The Abstract of Judgment
lists his crime as “Great bodily harm to a child”
and lists the applicable statute. (Mot. Ex. 2.) Similarly,
the Information for Count One provides the name and section
of the statute-Child Endangerment, California Penal Code
Section 273a(a)-and then states the full statutory language.
(Mot. Ex. 2.) The Information also lists the names, sections,
and statutory language for the Special Allegation related to
Count One, and for Count Two-Assault with Great Bodily
Injury. (Mot. Ex. 2.)
Defendant's Hearing Before the Immigration Judge
13, 2012, Defendant appeared before Immigration Judge (IJ)
Scott M. Jefferies. (Mot. Ex. 4.) At the hearing, the IJ
advised Defendant of the charges of removability against him
and that he had the right to be represented by an attorney.
(Mot. Ex. 4.) Defendant opted to proceed pro se.
(Mot. Ex. 4.)
the IJ questioned Defendant regarding the grounds for
removability and confirmed that Defendant is not a citizen of
the United States, entered the country illegally, and was
convicted of a crime involving moral turpitude. (Mot. Ex. 4.)
Consequently, the IJ found “that the charges of removal
have been sustained.” (Mot. Ex. 4.)
the IJ evaluated Defendant's eligibility for relief from
removal. The following exchange comprises the IJ's entire
IJ: By your admissions, I find that the
charges of removal have been sustained. If I order you
deported, to which country do you want to go?
D: Uh, Mexico.
IJ: Are you afraid to go back to Mexico?
D: No, sir.
IJ: Well sir, um, it doesn't appear that
you're eligible for any relief. The only thing that you
might be eligible for would be voluntary departure, but
because of your crime and your time that you spent-How long
did you spend in prison?
D: Two years.
IJ: Two years? You'd not be eligible for
voluntary departure, so I will order you removed from the
United States to Mexico. Do you want to appeal my decision to
a higher court?
D: No, sir.
Gov: The government waives appeal.
IJ:It's a final order. Thank you, sir.