The opinion of the court was delivered by: Bloom, United States Magistrate Judge
Defendant Marlon Penny moves for dismissal of the indictment charging him with illegal re-entry, pursuant to Federal Rule of Criminal Procedure 12(b)(2) and the Fifth Amendment, claiming that his prior deportation order was invalid. The Honorable Brian M. Cogan referred this matter to me for a Report & Recommendation pursuant to 28 U.S.C. §636(b). For the following reasons, it is recommended that defendant's motion to dismiss should be denied.
Defendant was born in Canada on December 23, 1987. (Def.'s Affirm at Exhibit C; docket entry 15.)*fn1 Defendant's mother, Maria Grant, moved to Brooklyn with defendant when he was two years old and married Elvin Grant, a United States citizen, on November 10, 1992. (Exhibit D.) In January 2005, defendant was arrested for robbery. On October 24, 2005, defendant pled guilty to attempted robbery in the second degree and was sentenced to one year in prison. (Def's Affirm ¶5; Exhibit E.) On October 26, 2005, defendant was interviewed by an officer of the United States Immigration and Customs Enforcement ("ICE").*fn2 (Exhibit F.) During the interview, defendant completed an Affidavit in which he stated that he came to the United States as a "baby," that his mother is a United States citizen and he requested a hearing before the Immigration Court to determine whether he could remain in the United States. (Id.) On November 7, 2005, the United States Immigration and Naturalization Service, now known as the United States Citizenship and Immigration Services,*fn3 (hereinafter the "Service"), issued a Notice to Appear and Record of Deportable/Inadmissible Alien which listed that defendant is not a United States citizen or national, that he is a citizen of Canada, that he arrived in the United States at a date and place other than that designated by the Attorney General, that he was convicted of attempted robbery and that he was 18 years of age.*fn4 (Exhibit G.) Defendant was also provided a Notice of Rights, which informed him (i) he had the right to a hearing in front of an immigration judge, (ii) he had the right to contact an attorney, (iii) upon his request, he would be provided with a list of free legal organizations that may represent him for free, (iv) he has the right to communicate with his consular or diplomatic officers, and (v) he may use a telephone to call a lawyer or consular officer at any time prior to his departure. (Exhibit F.) Defendant requested a hearing and stated that he had read and was read his Notice of Rights in English. (Id.)
On June 12, 2006, shortly after being transferred to immigration custody, ICE commenced removal proceedings against defendant by personally serving him with a Notice of Intent to Issue a Final Administrative Removal Order ("Notice of Intent"). (Exhibit H; Def.'s Affirm ¶7.) The Notice of Intent stated defendant would be placed in expedited administrative removal proceedings pursuant to Immigration and Nationality Act ("INA") §238(b), 8 U.S.C. §1228(b), based on the allegations that he is not a citizen or national, is a Canadian citizen, was not admitted at the time of entry into the United States and was convicted of attempted robbery in the second degree, which is an aggravated felony as defined by the INA §101(a)(43), 8 U.S.C. §1101(a)(43). (Id.) Defendant designated that he contested his deportability on the Notice of Intent. (Id.) Also on June 12, 2006, ICE served defendant with a Notice of Custody Determination. (Exhibit I.) Defendant designated on this notice that he requested a redetermination of his custody decision by an immigration judge (id.) and requested that his consular officials be notified (Exhibit J).
On June 17, 2006, defendant wrote a rebuttal letter contesting his deportability and stating that he was lawfully admitted when he arrived in the United States. (Exhibit K.) Defendant also stated that his daughter was born on May 6, 2006 and although he had not seen her yet, he wanted to watch her grow up and not miss her "whole life." (Id.) Defendant noted that his mother has a green card and his step-father was a United States citizen, who he believed could sponsor him. The Service issued a Final Administrative Removal Order ("Final Order") pursuant to §238(b) of the INA, 8 U.S.C. §1228(b), which was served on defendant on July 17, 2006. (Exhibit L.) The Final Order stated that defendant is not a citizen or national of the United States, he was not lawfully admitted for permanent residence, he has a final conviction of an aggravated felony as defined by §101(a)(43) of the INA, 8 U.S.C. §1101(a)(43), is ineligible for any discretionary relief from removal and is deportable pursuant to 237(a)(2)(A)(iii), 8 U.S.C. §1227(a)(2)(A)(iii). (Id.)*fn5 No selection was made on the form whether defendant waived or reserved any petition for review. (Id.) The attachment to the Final Order stated that defendant's written response was considered. (Id.) On July 25, 2006, defendant was deported to Canada. (Compl. ¶5.)
On June 24, 2009, defendant was arrested in Brooklyn, New York and charged under the name "Rowan Williams" with Criminal Possession of Marijuana in the Fifth Degree, in violation of New York Penal Law §221.10(1). (Compl. ¶2.) On June 26, 2009, defendant was placed in ICE's custody. (Id. at 3.) On July 8, 2009, defendant was charged with a violation of 8 U.S.C. §1326 (a) and (b)(2) (Compl.) and the Grand Jury indicted defendant on the charges on August 4, 2009 (docket entry 6). Defendant was arraigned on August 17, 2009 and entered his plea of not guilty to the charges. (Docket entry 10.) On November 13, 2009, defendant moved to dismiss the indictment and the Government opposes the motion. (Docket entries 15-17, 21-23.)*fn6 The Court has excluded the time from the date of defendant's arraignment to the date the motion to dismiss was argued from the calculation of the Speedy Trial Act. (Docket entries 9, 12; entries dated October 6, 2009, November 4, 2009, January 4, 2010 and January 28, 2010.) The Court heard oral arguments on February 2, 2010.
Section 1326(a) of Title 8 of the United States Code makes it a crime for a deported or removed non-citizen to enter, attempt to enter, or be found in the United States without the express consent of the Attorney General. U.S. v. Copeland, 369 F.Supp.2d 275, 285 (E.D.N.Y. 2005). Section 1326(b)(2) supplements subsection (a) by authorizing a maximum prison term of 20 years for "any alien described" in subsection (a) if the initial deportation "was subsequent to a conviction for commission of an aggravated felony." U.S. v. Castro, 472 F.Supp.2d 321, 328 (E.D.N.Y. 2007) (quoting 8 U.S.C. §1326(b)). A non-citizen charged with a violation of §1326 may collaterally attack the validity of a prior deportation order and proceedings since the prior order is a necessary element of the charged criminal offense. See 8 U.S.C. §1326(d); see also United States v. Mendoza-Lopez, 481 U.S. 828 (1987) (Deportation proceedings are not valid and cannot be used to establish a prior order of deportation for purposes of a criminal prosecution for illegal re-entry if the proceedings failed to afford the non-citizen due process of law.)
In order to challenge the validity of the prior deportation order, a defendant must demonstrate three elements:
(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). The Government concedes that defendant exhausted his administrative remedies here. (Government's Response in Opp'n ("Opp'n") at 4; docket entry 17.) Therefore, defendant must satisfy the ...