United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM, OPINION & ORDER
KAREN K. CALDWELL, Chief District Judge.
This matter is before the Court on Defendant Jose Rodriguez-Flores's motion to dismiss the indictment. (DE 16). After considering the motion, the response, and the exhibits presented by both parties, the Court will deny Defendant's motion to dismiss the indictment (DE 16).
Defendant was born in Mexico, and came to the United State when he was thirteen. (DE 16, p. 7). In 2009, he was convicted of trafficking marijuana (in two separate cases) and wanton endangerment in Fayette County, Kentucky Circuit Court. (DE 28-1, 28-2). Defendant was sentenced to two years on the first trafficking count, one year on the wanton endangerment count, and one year in the separate marijuana trafficking case (four years total). Defendant served one year in custody. He was released on parole and then taken into custody by Immigration and Customs Enforcement ("ICE") based on his illegal entry into the United States and his conviction of aggravated felony offenses. (DE 16, p. 7; DE 26, p. 2). On May 7, 2010, after an expedited administrative review proceeding, Defendant was removed at the Brownsville-Matamoros port. (DE 26, p. 2). According to the administrative record, Defendant "did not contest his removability." (DE 28-3). Defendant reentered the United States immediately after his deportation "[b]ecause he knew he could not survive in Mexico." (DE 16, p. 7).
On June 6, 2013, Defendant was indicted on one count of violating 8 U.S.C. § 1326, illegal reentry after deportation. (DE 1). To convict a Defendant of violating 8 U.S.C. § 1326(a), the Government must prove the following three elements beyond a reasonable doubt: (1) Defendant is an alien; (2) Defendant was previously deported from the United States; and (3) Defendant was found in the United States without the consent of the Attorney General. 8 U.S.C. § 1326(a); (DE 16, p. 9).
Defendant argues in his motion that he cannot be convicted of illegal reentry, because his original deportation was not lawful. Therefore, he contends that the Government cannot prove the second element of the offense of illegal reentry.
To collaterally attack an underlying deportation order under §1326, the alien must demonstrate 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) (emphasis added). Defendant has not provided any facts or authority to establish these three requirements. Defendant essentially asserts the same argument under all three elements of §1326. Defendant contends that he was denied due process when immigration officials did not tell him that he was eligible for asylum, withholding of removal, or deferred removal. However, this argument misses the mark.
Asylum, withholding of removal, and deferred removal are forms of relief from deportation and require an alien to prove certain needs for relief to avoid deportation. Withholding of removal and deferred removal require the same proof. However, deferred removal is available to aliens who do not qualify for withholding of removal due to convictions of serious crimes. 8 C.F.R § 208.16.
As an initial matter, Defendant was removed under 8 U.S.C. § 1228, which provides for expedited removal of aliens convicted of aggravated felonies. "Section 1228(b) provides for an administrative removal program that does not involve an immigration judge, [and] does not provide for an administrative appeal...." Valdiviez-Hernandez v. Holder, 739 F.3d 184, 190 (5th Cir. 2013). However, "a ...