United States District Court, N.D. Iowa, Cedar Rapids Division
LINDA R. READE, Chief District Judge.
The matter before the court is Defendant Carlos Lopez-Pinto's "Motion to Dismiss Based Upon Collateral Attack to Deportation Order" ("Motion") (docket no. 15).
II. RELEVANT PROCEDURAL HISTORY
On December 4, 2013, the grand jury returned a one-count Indictment (docket no. 2) against Defendant. The Indictment charged Defendant with illegally re-entering the United States in violation of 8 U.S.C. § 1326(a). On January 3, 2014, Defendant filed the Motion.
On January 8, 2014, the grand jury returned a five-count Superseding Indictment (docket no. 20). Count 1 of the Superseding Indictment charges Defendant with knowingly using and possessing identification documents knowing that the documents were unlawfully obtained in violation of 18 U.S.C. § 1546(a). Count 2 charges Defendant with falsely representing a social security number to be assigned to him in violation of 42 U.S.C. § 408(a)(7)(B). Count 3 charges Defendant with falsely claiming to be a citizen of the United States in violation of 18 U.S.C. § 911. Count 4 charges Defendant with knowingly using a means of identification that Defendant knew belonged to another person in violation of 18 U.S.C. § 1028A(a)(1). Finally, Count 5 charges Defendant with illegally re-entering the United States in violation of 8 U.S.C. § 1326(a). Even though the Motion seeks to dismiss the Indictment, the court, in the interest of efficiency and because Count 5 of the Superseding Indictment charges the same crime as the one-count Indictment, will treat the Motion as seeking to dismiss Count 5 of the Superseding Indictment.
On January 13, 2014, the government filed a Resistance to the Motion (docket no. 32). In the Motion, Defendant requests a hearing to present oral argument. The court concludes that oral argument is unnecessary. The Motion is fully submitted and ready for decision.
In the Motion, Defendant argues that the court should dismiss the Indictment because Defendant was not afforded due process when he was ordered removed from the United States in 2007. Defendant argues that he was not provided due process because "the immigration officer failed to advise him of all of [his] rights in Spanish." Brief in Support of the Motion (docket no. 15-1) at 1. Defendant contends that had he been afforded due process, he could have been granted voluntary departure, and, therefore, the entry of the deportation order was fundamentally unfair. In the Resistance to the Motion (docket no. 32-1), the government argues that the court should deny the Motion because Defendant failed to exhaust his administrative remedies, was not deprived of the opportunity for judicial review, was afforded due process and has not shown that actual prejudice resulted from the 2007 deportation order.
Collateral attacks of deportation orders are governed by 8 U.S.C. § 1326(d), which states that an alien may challenge a deportation order only if 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 judicial review; and
(3) the entry of the order was fundamentally unfair.
Id. To show that an error rendered the proceedings fundamentally unfair, an alien must show that the error resulted in actual prejudice. United States v. Rodriguez, 420 F.3d 831, 834 (8th Cir. 2005). "Actual prejudice exists where defects in the deportation proceedings may well have resulted in a deportation that would not otherwise have occurred." Id. (quoting United ...