U.S. v. Soto-Castelo

• Decision Date: 15 October 2008
• Docket Number: Case No. 2:08-cr-00157-ECR-GWF.
• Citation: 621 F.Supp.2d 1062
• Parties: UNITED STATES of America, Plaintiff, v. Jorge Alberto SOTO-CASTELO, Defendant.
• Court: U.S. District Court — District of Nevada

621 F.Supp.2d 1062

UNITED STATES of America, Plaintiff, v. Jorge Alberto SOTO-CASTELO, Defendant.

Case No. 2:08-cr-00157-ECR-GWF.

United States District Court, D. Nevada.

October 15, 2008.

COPYRIGHT MATERIAL OMITTED

U.S. Attorney by: None Appearing.

Counsel for Defendant(s) None Appearing.

MINUTES OF THE COURT

EDWARD C. REED, JR., District Judge.

MINUTE ORDER IN CHAMBERS

On September 23, 2008, the Magistrate Judge filed a Report and Recommendation (# 30) recommending that Defendant's Motion to Dismiss Based on a Prior Unlawful Deportation (# 17) be denied. No objections were timely filed to the Report and Recommendation (# 30).

The Report and Recommendation (# 30) is well taken. IT IS HEREBY ORDERED that the Report and Recommendation (#30) is APPROVED and ADOPTED.

IT IS, THEREFORE, HEREBY ORDERED that Defendant's Motion to Dismiss (# 17) is DENIED.

LANCE S. WILSON, CLERK

                By /s/
                Deputy Clerk
                

FINDINGS & RECOMMENDATIONS

Motion to Dismiss (# 17)

GEORGE FOLEY, JR., United States Magistrate Judge.

This matter is before the Court on Defendant Soto Castelo's Motion to Dismiss Based on a Prior Unlawful Deportation (# 17), filed on July 28, 2008; the Government's Response To Defendant's Motion to Dismiss Based on a Prior Unlawful Deportation (# 21), filed on September 2, 2008; Defendant's Reply to Government's Response (# 22), filed on September 4, 2008; Defendant's Supplemental Briefing (# 26), filed on September 9, 2008; and the Government's Supplemental Brief (# 28), filed on September 10, 2008. The Court conducted a hearing in this matter on September 5, 2008.

FACTUAL BACKGROUND

Defendant Jorge Alberto Soto Castelo is charged in an Indictment (#1) filed on May 28, 2008 with being a deported alien found unlawfully in the United States in violation of 8 U.S.C. § 1326. The Indictment alleges that Defendant was found in the United States on or about May 12, 2008 after having been deported and removed from the United States on May 18, 2007 and March 6, 2008.

A Notice to Appear ("NTA") in removal proceedings under Section 240 of the Immigration and Nationality Act was served on Defendant Soto Castelo on May 14, 2007. Motion to Dismiss (#17), Exhibit "A." The NTA charged that Defendant was an alien present in the United States who had not been admitted or paroled. The NTA further alleged that Defendant is a not a citizen or national of the United States, that he is a native and citizen of Mexico, that he entered into the United States at or near Lukeville, Arizona on or about May 2006, and that he was not then admitted or paroled after inspection by an immigration officer. Based on the foregoing, the NTA alleged that Defendant was subject to removal from the United States under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended. The NTA ordered the Defendant to appear before an Immigration Judge in Las Vegas, Nevada at a date and time to be set. Id.

On May 14, 2007, Mr. Soto Castelo signed a Stipulated Request For Removal Order and Waiver of Hearing ("Stipulated Request") that was printed in the English and Spanish languages. Motion to Dismiss (#17), Exhibit "C." Pursuant to the provisions of the Stipulated Request, Soto Castelo acknowledged that he had received a copy of the Notice to Appear, that he had been advised of and waived his right to be represented by a lawyer of his choice at his own expense,¹ and that he was giving up the legal rights he would have in a hearing before an Immigration Judge, including the rights to question witnesses, offer and object to evidence and to require the government to prove his removability.

The Stipulated Request further stated:

9. I do not wish to apply for any relief from removal for which I may be eligible under the Immigration and Nationality Act or any other provision of law. This may include voluntary departure, adjustment of status, change of status, cancellation of removal, registry, and naturalization.

10. I understand and agree that this written statement will be made part of the record for the immigration judge to review. I also understand and agree that the government's form I-213 and any court records relating to criminal convictions listed in the NTA may be made part of the record.

11. I understand and agree that I will accept a written order for my removal as a final disposition of these proceedings. I do not wish to appeal the written order of the immigration judge.

Id., Exhibit "C."

The Government thereupon filed its Response to Respondent's Statements Made for the Issuance of a Final Order Of Removal, Motion to Dismiss (#17), Exhibit "D," which stated that it did not oppose Soto Castelo's request for a final order of removal, that the Government waived a personal hearing and did not oppose the introduction of Respondent's Stipulated Request as an exhibit in the proceedings. The Government also accepted a written order of Respondent's removal to Mexico as a final disposition and waived its right to appeal.

On May 16, 2007, an Immigration Judge entered a removal order which stated in pertinent part:

Upon the basis of the respondent's admissions, I have determined that the respondent is subject to removal on the charge(s) in the Notice to Appear.

Respondent has made no application for relief from removal.

It is HEREBY ORDERED that the respondent be removed from the United States to Mexico on the charge(s) contained in the Notice to Appear.

Id., Exhibit "E."

Defendant Soto Castelo did not appear for a hearing before the Immigration Judge prior to the entry of the final order of removal on May 16, 2007. A Warrant of Removal/Deportation was issued on May 16, 2007 and Mr. Soto Castelo was deported to Mexico on May 18, 2007. Id., Exhibit "F."

At the hearing on Defendant's instant Motion to Dismiss, the Government introduced a copy of the Government's I-213 form dated May 14, 2007 regarding Defendant Soto Castelo. Government's Exhibit "1." The "Criminal History" section in the I-213 form contains the following information:

On 4/10/07, the subject appeared before the EIGHTH JUDICIAL DISTRICT COURT, CLARK COUNTY NEVADA and was convicted for POSSESSION FOR SALE CS CLASS SCHD I/II, in violation of NRS 453.337.

For this offense the subject was sentenced to a term of a MINIMUM of NINETEEN (19) MONTHS to a MAXIMUM of FORTY-EIGHT (48) MONTHS in the Nevada Department of Corrections, SUSPENDED, placed on probation for FOUR (4) YEARS. There were no conviction documents available for this arrest.

Id.

The Government does not contend that the I-213 form was actually provided to or reviewed by the Immigration Judge prior to the entry of the removal order. Defendant, however, also does not contend that the I-213 form inaccurately described his 2007 Nevada state conviction and sentence. The Government has attached copies of the January 9, 2007 Nevada District Court Information charging Defendant with the crime of Possession of Controlled Substance with Intent to Sell (Category D Felony—NRS 453.337), Methamphetamine, and the April 26, 2007 Judgement of Conviction (Plea of Guilty) pursuant to that charge. As set forth in the Judgment, Defendant was sentenced to a maximum of forty-eight (48) months and a minimum of nineteen (19) months in the Nevada Department of Corrections. His sentence was suspended and he was placed on probation for an indeterminate period not to exceed four (4) years. See Government's Response (#21), Exhibit, pp. 00004-7.

Defendant Soto Castelo allegedly reentered the United States in June, 2007. On February 27, 2008, the Government served Mr. Soto Castelo with a Notice of Intent/Decision to Reinstate Prior Order which notified him that the Secretary of Homeland Security intended to reinstate the order of removal entered against him on May 16, 2007. Motion to Dismiss (# 17), Exhibit "G." The notice stated that Mr. Soto Castelo may make a written or oral statement to an immigration officer contesting the determination, but stated that he did not have a right to a hearing before an Immigration Judge. Mr. Soto Castelo executed the box on the notice stating that he did not wish to make a statement contesting the determination. Id., Exhibit "G." A Warrant of Removal/Deportation was issued on February 28, 2008 pursuant to the reinstated final order of removal and Defendant was again deported to Mexico on March 6, 2008. Id., Exhibit "H."

DISCUSSION

Defendant Soto Castelo contends that the indictment in this case should be dismissed because he was not informed by an Immigration Judge during the underlying May 2007 removal/deportation proceedings of his eligibility to apply for discretionary relief from deportation in the form of "fast-track" voluntary departure. If such relief had been granted, Defendant would have been allowed to voluntarily leave the United States and would not thereafter have been subject to prosecution under 8 U.S.C. § 1326. He therefore argues that the waiver of rights set forth in the Stipulated Request was not "considered and intelligent" and violated his right to due process of law. Because the initial removal/deportation order violated his due process rights, Defendant also contends that the reinstatement of that order in February 2008 also violated due process.

The Government contends that the May 2007 removal/deportation proceeding and the reinstated removal/deportation order in March 2008 comported with due process. Even if there were procedural or due process errors, however, the Government contends that Defendant was not prejudiced because he was not eligible for any form of discretionary relief from deportation based on his prior state conviction for an aggravated felony. The Government therefore argues that Defendant cannot sustain a collateral attack on the validity of the removal orders.

In United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047-48 (9th Cir.2004), the Ninth Circuit stated:

"In a criminal prosecution under § 1326, the Due Process Clause of the Fifth Amendment...