The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
Defendant Erikson Zapata moves under Federal Rule of Criminal Procedure 12 to dismiss the indictment that charges him with illegal re-entry on the ground that the underlying deportation order pursuant to which he was originally removed from the United States is invalid. For the reasons stated below, defendant's motion is denied.
A citizen of the Dominican Republic, defendant originally entered the United States on December 29, 1985 and was admitted on that date as a legal permanent resident. Gov't's Mem. of Law in Opp'n to Def.'s Mot. to Dismiss the Indictment ("Opp'n") 3, Ex. B 2.*fn1 In connection with conduct occurring on or about July 4, 1991 in the County of New York, on July 12, 1991, defendant was charged in a four-count indictment with (i) Criminal Possession of a Controlled Substance in the Third Degree for knowingly and unlawfully possessing cocaine with the intent to sell the same in violation of New York Penal Law § 220.16(1); (ii) Criminal Possession of a Controlled Substance in the Third Degree for knowingly and unlawfully possessing cocaine in violation of New York Penal Law § 220.16(12); (iii) Criminal Possession of a Weapon in the Third Degree for possessing a loaded pistol in violation of New York Penal Law § 265.02(4); and (iv) Criminally Using Drug Paraphernalia in the Second Degree in violation of New York Penal Law § 220.50(2). Id. at Ex. C 1-2. On December 4, 1991, defendant pleaded guilty before the Supreme Court of the State of New York, County of New York to Attempted Criminal Possession of a Controlled Substance in the Third Degree in violation of New York Penal Law § 220.16, which the Government asserts is a Class C Felony. Id. at 4, Exs. B 2, D 1-3.*fn2 On January 15, 1992, defendant was sentenced to a definite imprisonment term of six months. Id. at Ex. D 1.
On May 13, 1992, Special Agent Michael Diaz of the United States Department of Justice Immigration and Naturalization Service ("INS") completed a form entitled, "Record of Deportable Alien." Br. Ex. B. In the form, Diaz identified defendant as a deportable alien due to his recent conviction for attempted criminal possession of controlled substance in the third degree.*fn3
Id. Diaz also listed the date of defendant's last entrance to the United States--December 29, 1985--and noted that defendant was ineligible for relief under § 212(c) of the Immigration and Nationality Act ("INA"). Id. On May 15, 1992, INS initiated deportation proceedings against defendant by issuing an arrest warrant and order to show cause why defendant should not be deported from the United States, which was served on defendant on May 27, 1992. Opp'n Ex. B 1. In the order to show cause, the INS alleged that defendant was subject to deportation pursuant to § 241(a)(2)(B)(i) of the INA because he had been convicted of a violation relating to a controlled substance and pursuant to § 241(a)(2)(A)(iii) of the INA because he had been convicted of an aggravated felony. Id. at Ex. B 2.
Following the completion of his sentence, defendant was taken into the custody of INS and transported to Oakdale, Louisiana. Br. 2. On June 8, 1992, Immigration Judge John Duck presided over defendant's deportation hearing at which an interpreter and representative of the Government were also present. Opp'n Ex. E 0:10.*fn4 Judge Duck informed defendant that he was entitled to a delay of the deportation hearing in order to prepare a case and hire an attorney. Id. at Ex. E 0:33. In response, defendant stated that he wished to represent himself and proceed that day. Id. at Ex. E 1:15. Defendant further acknowledged that he understood his right to be represented by an attorney and his right to appeal from any decision. Id. at Ex. E 1:45, 2:40. In the ensuing hearing, defendant admitted inter alia: (i) that he was a citizen of the Dominican Republic; (ii) that he was admitted to the United States as a legal permanent resident on December 29, 1985; and (iii) that he was convicted in the County of New York in the State of New York of attempted criminal possession of cocaine with the intent to sell the same. Id. at Ex. E 3:30. Following defendant's admissions and the Government's representation that it was not aware of any grounds for relief, Judge Duck ordered the defendant deported to the Dominican Republic on the basis of the charges listed in the order to show cause. Id. at Ex. E 4:28. Judge Duck advised defendant of his right to appeal the decision, but defendant conveyed that he understood the decision and declined to appeal. Id. at Ex. E 4:30. Judge Duck then brought the deportation hearing to an end by advising defendant that the decision was now final and by providing defendant with a copy of the deportation order. Id. at Ex. E 4:50. See also id. at Ex. F (deportation order). On June 12, 1992, INS executed a deportation warrant for defendant, which repeated that defendant entered the United States on December 29, 1985 and was subject to deportation pursuant to §§ 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the INA. Id. at Ex. G. On July 9, 1992, defendant was deported from Miami International Airport. Id.
At some point in the intervening years, defendant illegally returned to the United States. On May 31, 2011, defendant was indicted for this offense pursuant to 8 U.S.C. §§ 1326(a) and (b)(1).
A. The Motion to Dismiss as a Collateral Attack of the Underlying Deportation Order
While "[t]he dismissal of an indictment is an extraordinary remedy reserved only for extremely limited circumstances implicating fundamental rights," United States v. De La Pava, 268 F.3d 157, 165 (2d Cir. 2001), it is clear that a defendant charged with illegal re-entry under 8 U.S.C. § 1326 may collaterally attack the validity of the deportation order underlying his prosecution through a pre-trial motion brought under Federal Rule of Criminal Procedure 12. See, e.g., United States v. Calderon, 391 F.3d 370, 372 (2d Cir. 2004) (affirming order granting defendant's motion to dismiss the indictment alleging illegal re-entry on the ground that defendant had shown that the underlying deportation order was invalid). In United States v. Mendoza--Lopez, 481 U.S. 828 (1987), "the Supreme Court held that an alien could collaterally challenge the validity of a deportation order when the order is being used to form the element of a criminal offense and the alien has been denied any possibility of judicial review." United States v. Fernandez-- Antonia, 278 F.3d 150, 157 (2d Cir. 2002). Congress effectively codified this holding in 8 U.S.C. § 1326(d), which provides:
In a criminal proceeding under this section, an alien may not challenge the validity of the [underlying] deportation order unless the alien demonstrates that-
(1) the alien exhausted any administrative remedies that may have been available to seek ...