The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant Miguel Lara-Unzueta's (Unzueta) motion to dismiss the indictment. For the reasons stated below, the motion to dismiss is denied.
The record indicates that Unzueta is a native and citizen of Mexico and was granted temporary resident status in 1988 and lawful permanent resident status in the United States in 1990. In March 1996, Unzueta pled guilty to and was convicted of attempted first degree murder and armed violence and was sentenced to six years of imprisonment. In January 1997, then the Immigration and Naturalization Service (INS) initiated deportation proceedings against Unzueta, and on August 14, 1997, a deportation hearing (Deportation Hearing) was conducted before an Immigration Judge (IJ). At the Hearing, Unzueta applied for discretionary relief from removal under Section 212(c) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1101 et seq. (Section 212(c)), and argued that his offenses were not "aggravated felonies" under the INA. The IJ concluded that the offenses were aggravated felonies and denied Unzueta's request for Section 212(c) discretionary relief, finding that Unzueta was not eligible for such relief based upon a recent change in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The IJ terminated Unzueta's permanent resident status and ordered him removed to Mexico.
Unzueta appealed the IJ's ruling to the Board of Immigration Appeals (BIA) and in March 1998, the BIA affirmed the IJ's decision. On June 25, 1998, Unzueta was removed to Mexico. In June 2001, in I.N.S. v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held that AEDPA and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) did not apply to certain aliens who had convictions that became final prior to the enactment of AEDPA and IIRIRA. Id. at 326.
In October 2002, Unzueta was arrested for armed robbery and attempted armed robbery. Unzueta was then transferred to INS custody and was indicted on one count of illegally reentering the United States following his 1998 removal.
Unzueta was convicted of illegal re-entry and was sentenced to sixty-five months of imprisonment. In August 2007, Unzueta was again removed to Mexico.
In the instant action, the Government charges that on or before June 30, 2011, Unzueta again returned to the United States unlawfully and Unzueta is charged with re-entry into the United States without advance permission from the United States Attorney General or the Secretary of the Homeland Security Department in violation of 8 U.S.C. § 1326(a) and 6 U.S.C. § 202(4). Unzueta now moves to dismiss the indictment.
Unzueta argues that the decisions of the IJ and BIA were fundamentally unfair, contending that the IJ misled Unzueta by telling him that he was not eligible for discretionary relief under Section 212(c). Unzueta argues that he was denied due process during his removal proceeding because under the ruling in St. Cyr, he was eligible for Section 212(c) relief. The Government argues that Unzueta's motion to dismiss should be denied because he is pursuing an impermissible collateral attack on his deportation order and because he is precluded from pursuing his arguments based on the doctrine of collateral estoppel.
I. Collateral Attack on Deportation Order
The Government argues that Unzueta cannot collaterally attack his deportation order and that Unzueta failed to exhaust his administrative remedies. There is a limitation on collateral attacks on a deportation order pursuant to 8 U.S.C. § 1326(d), which provides as follows:
In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien demonstrates that--
(1) the alien exhausted any administrative remedies that may have been available to seek ...