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Keywords

defendantmotionfelonyjudicial reviewmotion to dismiss

defendantappealfelonydue processjudicial review

Related Cases

Garcia-Gonzalez; U.S. v.

Facts

Gustavo Garcia-Gonzalez, born in Mexico, was brought to the U.S. as a child. He had multiple criminal convictions, including possession of cocaine, which led to his removals from the U.S. In 2003, an Immigration Judge informed him that he was ineligible for voluntary departure due to his drug conviction being classified as an aggravated felony. In 2012, he attempted to re-enter the U.S. using a false birth certificate and was subjected to expedited removal.

In 2002, Defendant was convicted of several charges in the Superior Court of the State of California, Orange County. Defendant pled guilty to unlawful taking of a vehicle in violation of Cal. Veh. Code 10851(a), evading a peace officer while driving recklessly in violation of Cal. Veh. Code 2800.2, second degree burglary of a vehicle in violation of Cal. Penal Code 459 – 460(b), and possession of cocaine in violation of Cal. Health & Safety Code 11350(a).

Issue

The main legal issues were whether the defendant's 2003 removal was invalid due to the Immigration Judge's conclusion regarding his eligibility for voluntary departure and whether the 2012 expedited removal was valid.

The question before the Court is whether, given the state of the law in 2003, the IJ erred in concluding that Defendant's simple possession conviction was an aggravated felony and informing Defendant that he was ineligible for voluntary departure.

Rule

To sustain a collateral attack under 8 U.S.C. 1326(d), a defendant must demonstrate that he exhausted all administrative remedies, that the removal proceedings deprived him of judicial review, and that the entry of the order was fundamentally unfair.

To sustain a collateral attack under 8 U.S.C. 1326(d), a defendant must demonstrate that (1) he exhausted all administrative remedies available to him to appeal his removal order; (2) the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.

Analysis

The court analyzed the validity of the 2003 removal and the 2012 expedited removal. It noted that while there was uncertainty in the law regarding whether a state simple possession felony constituted an aggravated felony, the 2012 removal was valid due to the defendant's fraudulent actions. The court emphasized that the defendant's presentation of a false birth certificate indicated a serious immigration violation.

The Court finds that there was no prejudice from the alleged due process violations identified by Defendant. Defendant argues that he was prejudiced because he otherwise had a good chance at being permitted to withdraw his application for admission. The Court disagrees.

Conclusion

The court denied the defendant's motion to dismiss the indictment, concluding that the 2012 expedited removal was valid and that the defendant's actions constituted deliberate fraud.

The Court is not convinced that Defendant's contributions to the support and care of his daughter with Down Syndrome rise to the level of 'humanitarian or public interest' considerations.

Who won?

The United States prevailed in the case because the court found that the defendant's 2012 expedited removal was valid and that he engaged in deliberate fraud.

The Court finds that there was no prejudice from the alleged due process violations identified by Defendant.

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