The opinion of the court was delivered by: Siragusa, J.
This case was referred by order of the undersigned, dated November 24, 2010, Text Order of Referral, ECF No. 16, to Magistrate Judge Marian W. Payson, pursuant to 28 U.S.C. § 636(b)(1)(A)-(B) (2006). Defendant, Israel Mendez-Maldonado, is charged in a one-count indictment with illegal re-entry into the United States after having been deported following a conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2) (2006). Indictment, Nov. 23, 2010, ECF No. 15. The indictment alleges that Defendant was previously deported on May 1, 2001, and July 3, 2007. MendezMaldonado filed an omnibus pretrial motion, Notice of Motion, Mar. 15, 2011, ECF No. 23, seeking, inter alia, dismissal of the indictment, or alternatively suppression of his two prior removals. On August 10, 2011, Magistrate Judge Payson filed a Report and Recommendation ("R & R"), ECF No. 36, recommending that the Court deny Defendant's application. Defendant timely filed objections to the R & R on September 27, 2011. Objections to R & R , Sep. 27, 2011, ECF No. 38. As to his objections, Defendant essentially argues that Judge Payson erroneously concluded that he would not have been granted discretionary relief, pursuant to 8 U.S.C. § 1182 (h) from his May 1, 2001, deportation by the Attorney General, based upon extreme hardship to his mother. However, for the reasons stated below, the R & R is adopted in principal part and Defendant's motion for dismissal or suppression is denied.
After receiving a party's objections to a magistrate judge's report and recommendation, the district court: shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
Section 1326 of Title 8 provides that an alien-defendant may collaterally attack the underlying deportation order that forms an element of the charged offense only if the alien establishes each of the following three requirements:
(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); see also United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987). The Court assumes arguendo, as Judge Payson did, that Defendant can meet the first two requisites for relief and considers only whether he can establish that the entry of the first order of deportation was fundamentally unfair. In that regard, the Court first, upon de novo review of the submissions of the parties, accepts Judge Payson's findings of fact. R & R, at 2--4. Next, the Court considers, de novo, Judge Payson's legal determination that Defendant "has failed to demonstrate that it is reasonably likely or plausible that he would have been granted relief from deportation under Section 212(h). For this reason, Mendez cannot demonstrate that the entry of the deportation order that forms an element of the pending criminal charge was 'fundamentally unfair,'" R & R at 8.
It is well settled that the entry of a deportation order, in the face of procedural error, does not "render a proceeding fundamentally unfair unless that error resulted in prejudice. Actual prejudice exists where defects in the deportation proceedings 'may well have resulted in a deportation that would not otherwise have occurred.'" United States v. Fernandez-Antonia, 278 F.3d 150, 159 (2d Cir. 2002), (citing with approval United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995)). There is no dispute that Defendant, an illegal alien convicted of the aggravated felony of Robbery Third Degree at the time of his first deportation, qualified for discretionary relief from such deportation pursuant to 8 U.S.C. 1182(h), since robbery is a crime of moral turpitude. "To qualify for such discretionary relief, the alien must be a family member of a United States citizen or legal resident and the immigration judge must determine that a denial of admission to the alien 'would result in extreme hardship' to the family member." Fernandez-Antonia, 278 F.3d at 160. However, "even if the inadequacies in his removal proceeding amounted to fundamental procedural errors, [defendant] cannot show that those errors prejudiced him because he cannot make even a plausible showing that he might have been granted discretionary relief."Id. (emphasis added).
Consequently, based upon the applicable law, the Court determines that to be entitled to the relief he now seeks, Defendant must make a plausible showing regarding his May 1, 2001, deportation that, absent any procedural errors, he would have established to the satisfaction of the Attorney General his denial of admission would result in extreme hardship to his mother. 8 U.S.C. § 1182(h). On this issue, the Court finds that Defendant has failed to make such plausible showing. As the Second Circuit observed in FernandezAntonia:
"Extreme hardship" in the context of a § 212(h) waiver has been construed quite narrowly, and the waiver is considered to be a form of "exceptional" relief. See INS v. Jong Ha Wang, 450 U.S. 139, 145 (1981) (per curiam) ("The Attorney General and his delegates have the authority to construe 'extreme hardship' narrowly should they deem it wise to do so. Such a narrow interpretation is consistent with the 'extreme hardship' language, which itself indicates the exceptional nature of the suspension remedy."). Most, if not all, deportations involve some type of family hardship. See United States v. Arce-Hernandez, 163 F.3d 559, 564 (9th Cir. 1998). The key is that in order for a § 212(h) waiver to be granted properly, the hardship must be "extreme."
Fernandez-Antonia, 278 F.3d at 161.
In United States v. Arrieta , 224 F.3d 1076 (9th Cir 2000), the Ninth Circuit offered guidance on what would constitute a plausible showing in regard to ...