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UNITED STATES DISTRICT COURT 

DISTRICT OF ARIZONA 

United States of America, 

 Plaintiff, 

vs. 

Mauricio Solorzano-Cruz, 

 Defendant. 

CR 15-1853-TUC-JAS (JR) 

REPORT AND 

RECOMMENDATION 

 

 This matter was referred to Magistrate Judge Rateau for pretrial matters. On 

April 20, 2016, Defendant Mauricio Solorzano-Cruz (“Defendant”) filed a Motion to 

Dismiss Indictment Pursuant to 8 U.S.C. 1326(d). (Doc. 33). The Government filed 

a Response on May 17, 2016. (Doc. 39). Defendant filed a reply on June 7, 2016. 

(Doc. 47). The Court held a hearing on June 14, 2016. Defendant was present and 

represented by counsel.1

 No witnesses testified at the hearing. Having considered the 

matter, the Magistrate Judge recommends that the motion be denied. 

I. Factual Findings 

 Defendant is a citizen of El Salvador who became a permanent resident of the 

United States in 1990. (Doc. 33-3, p. 1). On June 26, 1998, he was arrested and 

 

1

 Because no testimony was presented, the Court did not request the preparation of a 

transcript of the hearing. 

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charged with robbery in Harris County, Texas. (Doc. 33-2, p. 1). The felony 

information read: 

[T]he Defendant, on or about June 26, 1998, did then and there 

unlawfully, while in the course of committing theft of property owned 

by [victim] and with intent to obtain and maintain control of the 

property, intentionally, knowingly and recklessly cause[d] bodily injury 

to [victim] by striking [victim] with a brick. 

Id. 

 Defendant pled guilty to the offense on June 29, 1998 and was sentenced to 

two years confinement. (Doc. 33-2, p. 2). On March 17, 2003, he was noticed to 

appear before the immigration judge. (Doc. 33-1). The notice charged: 

On the basis of the foregoing, it is charged that you are subject to 

removal from the United States pursuant to the following provisions(s) 

of law: Section 237(a)(2)(A)(iii) of the Immigration and Nationality 

Act (Act), as amended, in that, at any time after admission, you have 

been convicted of an aggravated felony as defined in section 

101(a)(43)(F) of the Act. 

Id. 

 Defendant appeared before an immigration judge for his removal proceeding 

and was advised by the judge as follows: 

So based upon your testimony alone, the Court finds Immigration 

Service has the right to deport from the United States because you have 

been convicted of an aggravated felony, a crime of violence. 

 

(Doc. 33-3, p. 2). Defendant was ordered removed from the United States to El 

Salvador. (Id. at p. 4). When asked if he wished to appeal the decision, Defendant 

answered, “Yes, sir,” and indicated that he believed that his life or freedom would be 

in danger if he were removed to El Salvador and wished to apply for withholding of 

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removal. (Id. at p. 2). However, after he was informed that he would be required to 

return to court to pursue relief, Defendant indicated that he did not want to appeal the 

removal order or seek withholding of removal. (Id. at pp. 3-4). 

 On September 26, 2015, Defendant was arrested near Santa Rosa, Arizona, on 

immigration related charges. (Doc. 1). On October 21, 2015, he was charged by 

indictment with Re-Entry After Deportation in violation of 8 U.S.C. § 1326, which 

was enhanced by 8 U.S.C. § 1326(b)(2) based on his previous removal. (Doc. 6). 

II. Legal Conclusions 

 A. Defendant’s Argument 

 In the motion before the Court, Defendant requests the dismissal of the 

indictment because “defects in the underlying removal proceedings violated his right 

to due process, foreclosed judicial review, and resulted in prejudice.” (Doc. 33, p. 1). 

More specifically, he contends that his prior removal was invalid because the 

underlying conviction for robbery did not qualify as an aggravated felony as charged 

in the Notice to Appear, or as aggravated felony and crime of violence and as found 

by the immigration judge. (Doc. 33, p. 4). 

B. Standards for Collateral Attack on Removal Order 

 “To convict an alien criminal defendant of illegal reentry under 8 U.S.C. § 

1326, the government must prove that the alien left the United States under order of 

exclusion deportation or removal, and then illegally reentered.” United States v. 

Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014) (quoting United States v. 

Barajas-Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011)). When facing such a charge, 

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a non-citizen has the right under the Fifth Amendment to “collaterally attack his 

removal order because the removal order serves as a predicate element of his 

conviction.” Alvarado-Pineda, 774 F.3d at 1201 (quoting United States v. UbaldoFigueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). That right is codified at 8 U.S.C. § 

1326(d), which requires a defendant to demonstrate that (1) he exhausted all 

administrative remedies available to him to appeal his removal order, (2) the 

underlying removal proceedings at which the order was issued improperly deprived 

him of the opportunity for judicial review, and (3) the entry of the order was 

fundamentally unfair. Ubaldo-Figueroa, 364 F.3d at 1048; see 8 U.S.C. § 1326(d). 

 1. Exhaustion of Administrative Remedies

 Defendant does not dispute that he failed to exhaust the administrative 

remedies available to him to challenge the underlying removal order. After the 

immigration judge found him deportable, Defendant was asked if he wanted to 

appeal the decision to a higher court. He was also asked if he wished to apply for 

withholding of removal. However, when the immigration judge set his case for 

further proceedings, Defendant, who is an English speaker, asked if he could “just get 

sent then do it . . . .” (Doc. 33-3, pp. 2-3). The judge then explained to him that he 

would have to apply for relief personally and then appear for a hearing. (Id., p. 3). 

Defendant indicated he did not wish to apply for withholding of removal and wished 

to be deported. He was then asked by the judge if he wished to appeal the decision, 

to which he replied, “No, sir.” Finally, the judge asked him if he was sure, and 

Defendant indicated that he was sure. (Id.). 

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 An alien is barred from collaterally attacking the validity of an underlying 

deportation order “if he validly waived the right to appeal that order during the 

deportation proceedings.” United States v. Gonzalez, 429 F.3d 1252, 1256 (9th Cir. 

2005); see also Untied States v. Galicia-Gonzalez, 997 F.2d 602, 604 (9th Cir. 1993) 

(to establish invalidity of waiver, a defendant must show “that his rights were 

improperly explained or that he was coerced into waiving them”). 

 Here, the Defendant argues that his waiver of his right to appeal the order is 

excused by the fact that the immigration judge informed him that no relief was 

available and because he was not otherwise informed of a potential basis for relief. 

In support of his argument, Defendant relies on United States v. Leon-Paz, 340 F.3d 

1003 (9th Cir. 2003). Leon-Paz involved an alien’s collateral challenge to his 

removal order on the ground that the immigration judge failed to inform him of his 

“apparent eligibility” for discretionary relief under § 212(c). 340 F.3d at 1005. 

 Immigration regulations require immigration judges to inform aliens of 

“apparent eligibility” for relief. 8 C.F.R. § 1240.11(a)(2). However, “apparent 

eligibility” is present “where the record, fairly reviewed by an individual who is 

intimately familiar with the immigration laws—as immigration judges no doubt 

are—raises a reasonable possibility that the petitioner may be eligible for relief.” 

Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir. 1989). Defendant here identifies 

no relief, discretionary or otherwise, for which he may have been eligible. The only 

issue before the immigration judge in Defendant’s case was whether Defendant’s 

conviction for robbery constituted an aggravated felony that would support his 

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removal. It would make little sense for the judge to find Defendant removable and 

then be obligated to inform him that he might be wrong. The very purpose of an 

appeal is to “correct legal error which occurred at the initial determination of 

deportability . . . .” INS v. Rios-Pineda, 471 U.S. 444, 450 (1985). Defendant does 

not, and reasonably cannot, contend that he was unaware that he could have appealed 

the immigration judge’s decision in his case. By waiving his appeal, Defendant only 

forewent his opportunity to challenge the immigration judge’s removal decision. 

Thus, unlike the situation in Leon-Paz, Defendant’s election to forego the appeal was 

not based on the immigration judge’s erroneous belief that Defendant was not 

entitled to some other form of relief from removal and he validly waived the right to 

appeal the removal order during the deportation proceedings. U.S. v. Muro–Inclan, 

249 F.3d 1180, 1182 (9th Cir. 2001). 

 Despite this authority, some cases suggest that exhaustion of administrative 

remedies and deprivation of judicial review is excused when it is determined that the 

immigration judge’s finding of an aggravated felony is later determined to have been 

incorrect. For example, in United States v. Morales, 634 Fed.Appx. 606 (9th Cir. 

2016), the defendant’s 1997 conviction for statutory rape was no longer considered 

an aggravated felony. Id. As such, the Ninth Circuit, relying on United States v. 

Gonzalez-Villalobos, 724 F.3d 1125 (9th Cir. 2013), concluded that the defendant’s 

waiver of his appeal rights was not “considered and intelligent” because it was based 

on “incorrect information” from the immigration judge. Dissenting from this 

conclusion, Judge Callahan noted that the majority’s decision was contrary to the 

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express provisions of 8 U.S.C. § 1326(d)(1) and (2) that disallow collateral attacks 

unless the defendant “exhausted his administrative remedies []or sought judicial 

review of the immigration judge’s conclusion that he was a removable felon.” 634 

Fed.Appx. at 607. Judge Callahan would have held that the defendant, who had been 

advised of his appeal rights and had waived them, was barred from mounting a 

collateral attack to the immigration judge’s conclusion that he was an aggravated 

felon. Id. 

 Although this Court disagrees with Morales, and agrees with Judge Callahan’s 

reasoning in dissent, it will nevertheless assume that the Defendant’s waiver of his 

appeal rights was not “considered and intelligent,” and continue with the analysis of 

the remaining requirements of section 1326. 

 2. Deprivation of Judicial Review

 Defendant must also show that the underlying removal proceedings at which 

the removal order was issued improperly deprived him of the opportunity for judicial 

review. Ubaldo-Figueroa, 364 F.3d at 1048; see 8 U.S.C. § 1326(d)(2). His 

argument on this point also relies on Leon-Paz. Specifically, he contends that “the 

immigration judge’s incorrect advice led to the deprivation of judicial review.” 

Reply, p. 2. However, Defendant does not identify what “incorrect advice” the judge 

offered him. The judge found that Defendant’s prior conviction for robbery 

constituted “an aggravated felony, a crime of violence,” and ordered Defendant 

removed. (Doc. 33-3, p. 2). The judge then offered Defendant the opportunity to 

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appeal the decision and Defendant ultimately declined. Thus, he was not deprived of 

any opportunity to appeal, but merely decided to forego the opportunity. 

 While this conclusion is supported by a natural reading of the underlying 

statutory requirements, in United States v. Gonzalez-Lopez, 724 F.3d 1125 (9th Cir. 

2013), the Ninth Circuit stated that: 

Although 8 U.S.C. § 1326(d)(1) and (d)(2) are separate requirements, 

we have generally held that where an alien is deprived of his right to 

appeal to the BIA, he satisfies both (d)(1) and (d)(2). This makes 

sense, because an alien who fails to exhaust his administrative remedies 

due to an error in the underlying proceedings, satisfying (d)(1), will 

typically also be deprived of the opportunity for judicial review, 

satisfying (d)(2). 

 

Id. at 1130. As an example of such a situation, the court referred to United States v. 

Pallares-Galan, 359 F.3d 1088 (9th Cri. 2004). In that case, Pallares-Galan, who was 

charged with illegal reentry under 8 U.S.C. § 1326, successfully mounted a collateral 

attack on the underlying removal order, arguing that immigration judge erred in 

finding that his California misdemeanor conviction for Annoying or Molesting a 

Child Under 18, in violation of Cal. Pen. Code § 647.6(a), constituted an aggravated 

felony conviction under 8 U.S.C. § 1101(a)(43)(A) of the immigration laws. Id. at 

1091. There, as Defendant did here, Pallares-Galan waived his right to appeal the 

immigration judge’s determination due to the length of time the appeal required. Id. 

at 1093. On appeal, the Ninth Circuit found that Pallares-Galan’s waiver was not 

“considered and intelligent” because the immigration judge erred in her 

determination that Pallares-Galan’s previous conviction constituted an aggravated 

felony. Id. at 1096. The court also found it significant that Pallares-Galan was 

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unrepresented by counsel and not adequately advised of the consequences of the 

choice he was forced to make. Id. at 1097. Thus, the court excused Pallares-Galan 

of satisfying § 1326(d)(1)’s exhaustion requirement, and for the same reasons found 

that he had been deprived of the § 1326(d)(2) opportunity for judicial review. Thus, 

the Court must examine the underlying decision by the immigration judge to 

determine if it was made in error. 

 3. Fundamental Unfairness 

 The Government contends that even if Defendant is excused from the 

exhaustion and judicial review requirements, he is nevertheless not entitled to relief 

because the immigration judge correctly characterized Defendant’s Texas robbery 

conviction under Tex. Penal Code § 29.02(a) as an aggravated felony, either as a 

crime of violence under 8 U.S.C. § 1101(a)(43)(F), or as a theft offense under 8 

U.S.C. § 1101(a)(43)(G), and, as such, properly determined that Defendant was 

ineligible for any relief from removal. 

 A defendant collaterally attacking an order of removal is obligated to 

demonstrate that the entry of the order was fundamentally unfair. Ubaldo-Figueroa, 

364 F.3d at 1048; see 8 U.S.C. § 1326(d). An underlying order of removal is 

“fundamentally unfair” if (1) a defendant’s due process rights were violated by 

defects in his underlying deportation proceeding, and (2) he suffered prejudice as a 

result of the defects. Alvarado-Pineda, 774 F.3d at 1201. However, even if there 

were procedural defects in the removal proceeding, a defendant’s collateral attack 

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“must necessarily fail” if he was convicted of an aggravated felony. United States v. 

Alvarado-Pineda, 774 F.3d 1198, 1202 (9th Cir. 2014). 

 Here, Defendant contends that the conviction upon which his removal rested 

did not qualify as an aggravated felony for which he could be properly removed. To 

determine whether his state conviction qualifies under the federal definition of an 

aggravated felony, courts employ the approach set forth in Taylor v. United States, 

495 U.S. 575 (1990). See Rendon v. Holder, 764 F.3d 1077, 1082 (9th Cir. 2014). 

“That approach—deemed the “categorical approach”—requires that courts look only 

to the statutory definitions—i.e., the elements—of a defendant’s prior offenses, and 

not ‘to the particular facts underlying those convictions’ when making a comparison 

between a prior conviction and a federal generic crime.” Id. at 1082-83 (internal 

quotations and citations omitted). “The prior conviction qualifies as [the generic 

offense] only if the statute’s elements are the same as, or narrower than, those of the 

generic offense.” Alvarado-Pineda, 774 F.3d at 1202. However, a state statute will 

qualify as a generic offense only if “the ‘full range of conduct covered by [the state 

statute] falls within the meaning’” of the generic offense. Id. (citing Mandujano–

Real v. Mukasey, 526 F.3d 585, 589 (9th Cir. 2008); Martinez–Perez v. Gonzales, 417 

F.3d 1022, 1026 (9th Cir. 2005)). 

 The Texas statute pursuant to which Defendant was convicted provided (and 

still provides) that a person commits robbery: 

if, in the course of committing theft as defined in Chapter 31 and with 

intent to obtain or maintain control of the property, he: 

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(1) intentionally, knowingly, or recklessly causes bodily injury to 

another; or 

(2) intentionally or knowingly threatens or places another in fear of 

imminent bodily injury or death. 

Tex. Penal Code § 29.02(a). 

 A conviction for robbery under this statute is not categorically an aggravated 

felony “crime of violence” because it does not have “as an element the use, or 

threatened use of physical force against the person or property of the another,” as 

required under 18 U.S.C. § 16(a), and because it does not meet the definition of a 

“crime of violence” found in 18 U.S.C. § 16(b). As the Ninth Circuit explained in

United States v. Palacios-Gomez, -- Fed.Appx. --, 2016WL1105296 (9th Cir. 2016), 

this is because the statute allows for the possibility of “recklessly caus[ing] bodily 

injury to another.” Because the crime can be committed with a mens rea of 

recklessness, it is not categorically included in the definition of a crime of violence. 

See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006). 

 The Government attempts to sidestep the ruling in Palacios-Gomez, arguing 

that the conviction is a crime of violence under the modified categorical approach. 

“For the limited purpose of helping to implement the categorical approach, the 

[United States Supreme] Court has recognized a ‘narrow range of cases’ in which 

courts may apply the ‘modified categorical approach.’” Rendon, 764 F.3d at 1083 

(quoting Taylor, 495 U.S. at 602). The modified categorical approach “allows courts 

to look beyond the statutory test to a limited set of documents to determine the 

elements of the state offense of which the defendant was convicted when some 

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alternative elements of the state crime would match the federal, generic crime, and 

other alternative elements would not. Rendon, 764 F.3d at 1083. However, the 

Supreme Court has limited the use of the modified categorical approach to situations 

where the state statute is divisible, that is where it “lists multiple, alternative 

elements, and so effectively creates several different . . . crimes.” Descamps v. 

United States, 133 S.Ct 2276, 2283 (2013). 

 Here, the Government has convincingly established that the Texas statute at 

issue is divisible. In relevant part, the statute provides that robbery can be committed 

by “intentionally, knowingly, or recklessly” causing bodily injury to another. Tex. 

Penal Code § 29.02(a)(1). Due to the disjunctive phrasing of three levels of mens rea

required for a conviction, the statute effectively creates several different crimes and 

is therefore divisible. United States v. Palacios, -- Fed.Apx. --, 2016WL1105296 (9th

Cir. 2016) (finding Tex. Penal Code § 29.02(a)(1) divisible). Thus, the Court may 

employ the modified categorical approach and review noticeable documents related 

to Defendant’s Texas conviction even if they were not introduced at his removal 

hearing. See Untied States v. Bustos-Ochoa, 704 F.3d 1053, 2056-57 (9th Cir. 2012). 

 The only document offered by the Government in this case is the Defendant’s 

Texas information. It alleges that Defendant “intentionally, knowingly and 

recklessly cause[d] bodily injury to [victim] by striking [victim] with a brick.” (Doc. 

33-2, p. 1). The Court notes that, on its face, the information offers no insight into 

whether the acts alleged were done intentionally, knowingly or recklessly. 

Nevertheless, the Government seizes on the “striking” allegation and argues that it 

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shows the Defendant acted intentionally or knowingly and thus rules out the 

possibility that he acted recklessly under the statute. In support of its position, the 

Government offers that the “Oxford Dictionary definition of ‘strike’ is to ‘hit forcibly 

and deliberately with one’s hand or weapon or other implement.” Response, p. 4. 

The word “deliberately,” in turn, is defined as “consciously and intentionally; on 

purpose.” Id. Thus, the Government contends, the use of the word “strike” in the 

information establishes that Defendant’s acts were intentional. 

 What the Government overlooks, however, is that the same dictionary offers 

other definitions that encompass non-intentional strikes. For example, a strike can be 

an “accidental hit (a part of one’s body) against something,” or to “come into forcible 

contact or collision with.” These latter definitions suggest that a strike can be 

recklessly accomplished. It is entirely possible that Defendant threw a brick through 

a window, intending to create access into a structure, only to have it hit the victim. 

Thus, without additional information about the facts of the underlying conviction, the 

Court cannot conclude that the conviction constituted an aggravated felony under the 

modified categorical approach. 

 However, this conclusion does not end the categorical inquiry. If, as the 

Government argues, the Texas robbery conviction categorically constitutes a “theft 

offense,” it is considered an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) and 

provides a proper basis for Defendant’s removal. The Ninth Circuit, in United States 

v. Alvarado-Pineda, 774 F.3d 1198 (9th Cir. 2014), undertook a similar evaluation of 

the Washington robbery statute. There, the court first defined “generic theft”: 

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 Under the Immigration and Nationality Act, a statute may 

qualify as an aggravated felony if it is a “theft offense.” 8 U.S.C. § 

1101(a)(43)(G). We have defined generic “theft” as “a taking of 

property or an exercise of control over property without consent with 

the criminal intent to deprive the owner of the rights and benefits of 

ownership.” United States v. Corona–Sanchez, 291 F.3d 1201, 1205 

(9th Cir. 2002) (en banc) (quoting Hernandez–Mancilla v. INS, 246 

F.3d 1002, 1009 (7th Cir. 2001)). Generic theft, in other words, 

requires (1) the taking of (2) property (3) without consent (4) with the 

intent “to deprive the owner of rights and benefits of ownership.” See 

id.; see also Mandujano–Real v. Mukasey, 526 F.3d 585, 589–90 (9th

Cir.2008). 

774 F.3d at 1202. With this definition in mind, the court then compared the elements 

of the Washington robbery statute with those of generic theft and concluded that “the 

‘full range of conduct’ criminalized by [the] Washington second-degree robbery 

[statute] falls within the meaning of generic theft in that both require (1) the taking of 

(2) personal property (3) without consent and (4) with the specific intent to steal.” 

Id. at 1202-03. 

 Turning to our case, the question is whether the Texas robbery statute, like the 

Washington robbery statute, falls within the definition of generic theft. As a 

threshold matter, the robbery statute pursuant to which Defendant was convicted, 

Tex. Penal Code § 29.02, expressly incorporates the elements of the Texas theft 

statute, Tex. Penal Code § 31.03.2

 See Tex. Penal Code § 29.02(a) (providing that a 

 

2

 In relevant part, the Texas theft statute provides: 

(a) A person commits an offense if he unlawfully appropriates property 

with intent to deprive the owner of property. 

(b) Appropriation of property is unlawful if: 

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robbery is committed if, “in the course of committing theft as defined in Chapter 31 

and with intent to obtain or maintain control of the property . . . .”). As such, if the 

elements of the Texas robbery statute, considered with the incorporated elements of 

the Texas theft statute, are found to correspond to the definition of generic theft, 

Defendant’s removal order cannot be found to be fundamentally unfair. 

 Again, the generic definition of theft requires (1) the taking of (2) personal 

property (3) without consent and (4) with the specific intent to steal. Elements 1, 2 

and 4 of the generic definition are satisfied by the theft statute’s requirements of 

appropriation of property “with intent to deprive the owner of the property,” Tex. 

Penal Code § 31.03(a), and the robbery statute’s requirement that the state prove 

“intent to obtain or maintain control of the property.” Tex. Penal Code § 29.02(a). 

 The only potential confusion arises from the theft statute’s requirement that 

the appropriation be without the owner’s “effective consent,” Tex. Penal Code § 

 

(1) it is without the owner’s effective consent; 

(2) the property is stolen and the actor appropriates the 

property knowing it was stolen by another; or 

(3) property in the custody of any law enforcement 

agency was explicitly represented by any law 

enforcement agent to the actor as being stolen and the 

actor appropriates the property believing it was stolen by 

another. 

Tex. Penal Code § 31.03. 

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31.03(b)(1), and whether that comports with the generic theft element of “without 

consent.” This discrepancy was addressed by the Fifth Circuit in United States v. 

Rodriguez-Salazar, 768 F.3d 437 (5th Cir. 2014). There, the Fifth Circuit explained: 

 Our task is to determine whether the Texas [theft] offense is 

comparable to and categorically fits within the generic federal 

definition of the corresponding crime of theft. We must ask if the state 

would apply its statute to conduct that falls outside the generic 

definition of theft. Moncrieffe v. Holder, ––– U.S. ––––, 133 S.Ct. 

1678, 1684–85, 185 L.Ed.2d 727 (2013). 

 Clearly the definition of theft we have followed does not limit 

the crime to consent withheld when a guilty person takes possession of 

the property from the owner. The withholding of consent is expressly 

extended to the time the thief or embezzler exercises control of the 

property. The owner’s consent is comparable whether measured before 

or after the moment the property is transferred. We see no justification 

to carry that narrow distinction to change the generic theft crime. 

Rodriguez-Salazar, 768 F.3d at 438. Thus, the Fifth Circuit concluded that a 

conviction under the Texas Penal Code § 31.03 fell within the generic definition of 

theft and therefore qualified as an aggravated felony under 8 U.S.C. § 

1101(a)(43)(G). 

 The Court sees no reason to reject the Fifth Circuit’s conclusion that the Texas 

theft statute, which is incorporated into the Texas robbery statute under which 

Defendant was convicted, is a categorical theft offense under 8 U.S.C. § 1101(a)(43), 

and therefore finds that the elements of Defendant’s conviction satisfied the elements 

of generic theft. It is also undisputed that Defendant was sentenced to more than one 

year in prison for the Texas robbery conviction. Thus, the conviction qualifies as an 

“aggravated felony” under 8 U.S.C. § 1101(a)(43)(G), and Defendant did not suffer 

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any prejudice from any defects in his removal proceedings and the entry of the 

removal order was not fundamentally unfair. Ubaldo-Figueroa, 364 F.3d at 1048; 

see 8 U.S.C. § 1326(d). 

 Additionally, even though this is a different ground than the one previously 

relied on by the government, it nevertheless can be relied upon in upholding the 

removal order. See Alvarado-Pineda, 774 F.3d at 1202 (noting that the district court 

had upheld the defendant’s removal by concluding that second degree robbery was an 

aggravated felony crime of violence, but affirming on the ground that the conviction 

under the statute “is a conviction of a ‘theft offense’”). 

III. Recommendation 

 Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and Local Rule 

Civil 72.1, Rules of Practice of the United States District Court, District of Arizona, 

the Magistrate Judge recommends that the District Court, after an independent 

review of the record, DENY Defendant’s Motion to Dismiss Indictment Pursuant to 

8 U.S.C. 1326(d). (Doc. 33). 

This Recommendation is not an order that is immediately appealable to the 

Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), 

Federal Rules of Appellate Procedure, should not be filed until entry of the District 

Court's judgment. However, the parties shall have 14 days from the date of service 

of a copy of this recommendation within which to file specific written objections 

with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of 

the Federal Rules of Civil Procedure. Thereafter, the parties have ten (10) days 

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within which to file a response to the objections. No replies are permitted without 

leave of court. If any objections are filed, this action should be designated case 

number: CR 15-1853-TUC-JAS. Failure to timely file objections to any factual or 

legal determination of the Magistrate Judge may be considered a waiver of a party’s 

right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 

F.3d 1114, 1121 (9th Cir. 2003) (en banc). 

 Dated this 23rd day of June, 2016. 

Honorable Jacqueline M. Rateau 

United States Magistrate Judge 

 

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