United States v. Andino-Matamoros

• Citation: 365 F.Supp.3d 1109
• Decision Date: 04 February 2019
• Docket Number: Case No. 3:18-cr-00080-LRH-WGC
• Parties: UNITED STATES of America, Plaintiff, v. Denis Arnulfo ANDINO-MATAMOROS, Defendant.
• Court: U.S. District Court — District of Nevada

365 F.Supp.3d 1109

UNITED STATES of America, Plaintiff,

v.Denis Arnulfo ANDINO-MATAMOROS, Defendant.

Case No. 3:18-cr-00080-LRH-WGC

United States District Court, D. Nevada.

Signed February 4, 2019

James E. Keller, United States Attorneys Office, Reno, NV, for Plaintiff.

ORDER

LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

Defendant Denis Arnulfo Andino-Matamoros has filed a motion to dismiss his indictment, which had charged him with illegal reentry by a previously deported alien. (ECF No. 16 ). The government responded (ECF No. 18 ), and defendant timely replied (ECF No. 22 ). Defendant also filed a supplemental brief in support of his motion to dismiss following the government's production of the audio recording of one of his immigration hearings. (ECF No. 25 ). The government then moved to strike defendant's supplemental filing. (ECF No. 27 ). For the reasons stated below, the Court will deny the government's motion to strike and deny defendant's motion to dismiss.

I. Factual Background

Defendant, a Honduran national, first entered the United States on April 1, 2005, at or near San Ysidro, California. (ECF No. 16-1 at 3 ). He was subsequently discovered by Immigration and Customs Enforcement ("ICE") in El Paso, Texas, and on May 3, 2005, was served with a Notice to Appear ("NTA") before an immigration court for unlawfully entering the United States. (ECF No. 16 at 2 ) An NTA is a document that the government sends to an alien that instructs the alien to appear before an immigration judge at a specific place, date, and time to determine if the alien should be removed from the United States. Defendant's NTA charged him with entering the United States without being admitted or paroled following an inspection by an immigration officer, a violation of § 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"). (ECF No. 16-1 at 3 ). Defendant appeared for his hearing on June 28, 2005, and he appeared at each of the five subsequent hearings as his case was continued multiple times. (ECF No. 18 at 2 ). On August 24, 2005, an immigration judge granted a request to transfer defendant's proceedings from San Antonio to Houston because he had recently relocated there. (Id. ) Defendant received three separate notices of his removal hearing during his time in Houston, but his case was eventually transferred back to San Antonio in January 2006. (Id. at 2–3). On February 13, 2006, an immigration judge dismissed defendant's case without prejudice because his "whereabouts [were] unknown." (ECF No. 16-2 at 3 ). Defendant resurfaced two years later in Miami, Florida, when he pleaded guilty to possession of 20 or more grams of marijuana. (ECF No. 16 at 2 ). Several months later, he also pleaded guilty for possession of a stolen or fictious driver's license. (Id. ) Based on these offenses, ICE located him in a Miami-Dade County jail and lodged an immigration detainer on him. (Id. ) On November 10, 2008, he was released into ICE custody. (Id. at 3).

Two days later on November 12, 2008, defendant received an NTA that charged him with several removable offenses: (1) the previous offense of not being admitted or paroled into the United States following an inspection by an immigration officer; (2) not being in possession of any valid entry documents as required by the INA; and (3) being convicted of the narcotics offense in Miami. (ECF No. 16-4 at 2 ). Although the NTA listed the address of the immigration court in Harlingen, Texas, it did not list the date or time for the hearing. (Id. ) At the time he received the NTA, defendant was being held in ICE custody at the Willacy Detention Center in Raymondville, Texas. (Id. ) While still in ICE custody, defendant, along with several other aliens, appeared via video feed before an immigration judge in San Antonio on December 8, 2008. During the hearing, Defendant was advised that he was allowed to be represented by an attorney if he could procure one, provided a list of legal aid organizations that could potentially represent him for free or at a reduced cost, and told that he would be given a continuance if he wished to hire a lawyer.¹ He was also informed that he could be eligible for voluntary departure if he could arrange and pay for his own transportation back to his home country. During another alien's hearing, the immigration judge explained several aspects of voluntary departure to the group as a whole, telling them that anyone granted voluntary departure who fails to leave the United States within the allotted time would have an order of removal entered against them. They would also be subject to a civil penalty and become ineligible for voluntary departure for ten years. During defendant's hearing before the immigration judge, he admitted that he was subject to removal because he entered the country illegally, did not have valid immigration documents, and had committed a marijuana offense in Miami. Defendant stated that he wanted to apply for voluntary departure, but the government objected based on his criminal history. Because of the government's objection, the immigration judge set defendant's voluntary departure hearing for January 23, 2009, at 9:00 am. Defendant received written notice for the hearing the same day.

Defendant once again appeared via video feed for his January 23 hearing. At the hearing, the immigration judge stated that defendant needed to prove that he deserved voluntary departure as a matter of discretion.² The judge also stated that defendant could either present his evidence as to why he should be granted voluntary departure or withdraw his application and have a removal order entered against him. Defendant replied by stating that he wanted voluntary departure but did not have the means to pay for it. When questioned by the immigration judge, defendant confirmed that he did not have the means to pay for his way back to Honduras. The immigration judge then informed defendant that he would be detained while he arranged for transportation back to Honduras. Defendant replied by saying that he wanted to withdraw his application for voluntary departure. The immigration judge granted defendant's request and ordered that he be deported. Following defendant's removal to Honduras, he unlawfully reentered the United States on June 19, 2009, January 2, 2014, and March 26, 2015, and he was removed each time. (ECF No. 18 at 4 ).

Defendant was indicted on September 12, 2018, for a fourth alleged illegal reentry into the United States after having been previously deported. (ECF No. 1 ). He now seeks to dismiss the indictment against him.

II. Legal Standard

8 U.S.C. § 1326(d) allows for an alien criminally charged under § 1326(a) for illegal reentry to challenge the validity of the predicate removal order, but only if: (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. To establish the third requirement, an order of removal is fundamentally unfair if defects in the proceedings violated the alien's right to due process and he suffered prejudice as a result. U.S. v. Aguilera-Rios , 769 F.3d 626 (9th Cir. 2014). Under Ninth Circuit caselaw, a defendant can satisfy all three requirements by establishing that the immigration judge failed to inform him of his apparent eligibility for relief and that he had plausible grounds for relief. U.S. v. Rojas-Pedroza , 716 F.3d 1253, 1262 (9th Cir. 2013).

III. Discussion

Defendant seeks dismissal of his indictment on two separate grounds. First, he argues that the immigration judge misadvised and "affirmatively misled" him about his eligibility for voluntary departure because he told defendant that he would have to pay for his own removal. (ECF No. 16 at 8 ). Second, and in the alternative, defendant argues that pursuant to a recent Supreme Court case, Pereira v. Sessions , the immigration court lacked jurisdiction over his removal proceedings because the December 8, 2008 NTA did not list the date or time of his removal hearing. (Id. at 10). Following the close of briefing, the government submitted the audio recording of defendant's January 23, 2009 voluntary departure hearing. Defendant filed a supplemental brief following the disclosure of the recording (ECF No. 25 ), but the government filed a motion to strike the supplementation, arguing that defendant merely repeated arguments made in his motion to dismiss. (ECF No. 27 ). The Court will address the government's motion to strike first.

A. The Government's Motion to Strike

In its motion to strike, the government seeks to strike defendant's supplemental filing in support of his motion to dismiss. The United States argues that defendant merely repeats several arguments that he previously made in his motion to dismiss and that his sole new argument is not supported by the record. (ECF No. 27 at 1 ). In response, defendant argues that he had previously requested leave to supplement in his motion to dismiss and that the government failed to cite to any applicable law in requesting that his supplementation be stricken. (ECF No. 28 at 1–2 ). Federal Rule of Civil Procedure 12(f) gives the Court discretion to strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The Court may also strike arguments made for the first time in reply briefs because the opposing party is deprived of an opportunity to respond. Provenz v. Miller , 102 F.3d 1478, 1483 (9th Cir. 1996) ; Tovar v. U.S. Postal Service , 3 F.3d 1271, 1273 n.3 (9th Cir. 1993).

Here, the Court will not strike defendant's supplementation. As an initial matter, although defendant requested leave to file a supplement, he did so within his motion to dismiss, and the Court never granted his request. Local Rule 7-2(g) prohibits parties from filing...