United States v. Castro-Inzunza
| Decision Date | 30 May 2012 |
| Docket Number | Case No. 3:11-cr-00418-MA |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. EZEQUIEL CASTRO-INZUNZA, Defendant. |
| Court | U.S. District Court — District of Oregon |
S. AMANDA MARSHALL
United States Attorney
District of Oregon
MICHELLE HOLMAN KERIN
Assistant United States Attorney
Portland, OR 97204-2902
Attorneys for Plaintiff
FRANCESCA FRECCERO
Federal Public Defender
Portland, OR 97204
Attorney for Defendant
Defendant Ezequiel Castro-Inzunza previously moved for pretrial release pursuant to 18 U.S.C. § 3142 pending trial on one count of unlawfully reentering the United States in violation of8 U.S.C. § 1326(a). The Immigration and Customs Enforcement division of the Department of Homeland Security (ICE or DHS} has given notice by means of an ICE detainer that defendant's removal has been ordered under 8 U.S.C. § 1231. Due to the ICE detainer, if defendant is released from custody by the U.S. Marshal, his custody will be transferred to ICE, and removal proceedings will begin. 8 U.S.C. § 1231(a)(2).
Following a detention hearing, Magistrate Judge John V. Acosta granted defendant's motion for pretrial release. (ECF #24.) On May 14, 2012, the government moved to stay the Release Order, which 1 granted. Currently before me is the government's Motion for Review and Revocation of the Release Order. (ECF #28.) After careful consideration of the parties' briefing and the record as a whole, I reverse Judge Acosta's Release Order, and order defendant to remain in custody until trial now set for August 14, 2012.
Defendant came to the United States from Mexico in the late 1980s as a temporary resident under the Special Agricultural Worker Program. Under that program, defendant automatically became a lawful permanent resident as of December 2, 1990.
In March of 1989, defendant, who was then living in Nevada, was charged with possession of heroin with intent to sell, an aggravated felony. On the advice of counsel, defendant pled guilty to the charge. Based on the transcript of that proceeding, itappears that neither his attorney nor the court advised defendant that pleading guilty would likely result in his removal from the United States. On January 20, 1990, the trial judge accepted defendant's plea and he received a four year sentence.
Following his conviction, the Immigration and Naturalization Service (INS, the predecessor agency to ICE) began immigration proceedings. It appears that there were two sets of immigration proceedings, occurring in 1993 and 1994. In the 1993 proceedings, INS sought to deport defendant due to his felony conviction, but those proceedings were dismissed because his status was adjusted to "lawful permanent resident" after his conviction. Thus, the proper proceeding was rescission of his lawful permanent resident status. In December of 1993, INS rescinded his lawful status. In January of 1994, defendant asked an immigration judge to reconsider the Order of Rescission. The judge denied the request, and defendant was removed following expiration of his sentence on January 19, 1994.
On August 17, 1994, with the assistance of Nevada counsel, defendant filed a Petition for Writ of Error Coram Nobis in state court seeking to withdraw his guilty plea based on his counsel's failure to advise him of the immigration consequences of his plea. The court denied his petition. Defendant's appeal from that decision was rejected by the Nevada Supreme Court on December 19, 1995, based in part on then existing Ninth Circuit precedent.Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir. 1988); Fruchtman v. Kenton, 531 F.2d 946, 949 (9th Cir. 1976), cert. denied, 429 U.S. 895 (1976); (Defendant's Memo, of Law Supporting Release (ECF #20), p. 51-52).
On February 26, 2003, defendant reapplied for admission into the United States. On September 11, 2003, DHS denied defendant's request. Defendant was permitted 30 days to appeal that decision, but did not do so.
In September of 2011, defendant was found in Umatilla, Oregon, and arrested. On September 28, 2011, DHS provided defendant a "Notice of Intent/Decision to Reinstate Prior Order." The Reinstatement Order indicates that the government intends to reinstate its previous deportation order and remove defendant from the United States. (Plaintiff's Motion for Review (ECF #22-3) p. 1.) The Reinstatement Order provides that to contest the Reinstatement Order, defendant would need to provide a statement to an immigration officer. Defendant did not provide a statement. The Reinstatement Order also provides that there is no right to hearing before an immigration judge. Therefore, pursuant to the Reinstatement Order, ICE has reinstated its previous deportation order. 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8.
In October of 2011, defendant was charged in the District of Oregon with unlawful reentry into the United States without permission of the Attorney General, violating 8 U.S.C. § 1326.Because defendant was deported following a conviction for an aggravated felony, he faces a maximum penalty of 20 years. 8 U.S.C. § 1326(b)(2). At defendant's arraignment and preliminary detention hearing, defendant was detained as a flight risk.
On December 1, 2011, defendant's Nevada counsel filed an action in state district court again attempting to withdraw his 1990 guilty plea and reinstate his lawful permanent resident status on the basis of the U.S. Supreme Court's ruling in Padilla v. State of Kentucky, 130 S. Ct. 1473, 1486 (2010). In Padilla, the Supreme Court determined that counsel's failure to advise a defendant of possible removal upon entering a guilty plea to a criminal charge constitutes ineffective assistance. The state court denied defendant's motion on March 12, 2012, and his appeal is pending-before the Nevada Supreme Court.
On May 3, 2012, defendant filed a Motion for Request for Release Pending Trial. (ECF #20.) Defendant submitted letters from family and friends and was interviewed by Pretrial Services. Defendant informed Pretrial Services that he had moved to Oregon two weeks before his arrest to find work. Defendant has been living in the United States for nearly 20 years, and his wife and three children are U.S. citizens. Defendant also has family living in California and Arizona who are legal residents. In its report, Pretrial Services recommended that defendant be detained becausethere were no conditions which will reasonably assure defendant's presence at trial due to the ICE detainer.
Judge Acosta held a detention hearing on May 9, 2012. On May 14, 2012, Judge Acosta issued an Order releasing defendant prior to his trial. (ECF #24.) Judge Acosta concluded that there were no facts demonstrating that defendant was a flight risk, apart from his ICE detainer, and that factor alone was insufficient to prevent his pretrial release. On the government's motion, I stayed the release order pending review. (ECF #25, 26.) On May 22, 2012, I conducted oral argument on the government's motion, and orally reversed Judge Acosta's Release Order. I also ordered defendant to remain in custody pending his trial, and advised counsel that I would issue this Opinion and Order separately. (ECF #31.)
In its current motion, the government makes two arguments: (1) the court should not have reopened the detention hearing; and (2) defendant is a flight risk, and there are no conditions that would reasonably assure his presence at trial. Defendant argues that because he poses no risk of flight, the ICE detainer and reinstatement of removal order are insufficient to prevent his pretrial release.
Pursuant to 18 U.S.C. § 3145(a)(1), the government may seek review of a magistrate judge's order of release. The districtcourt's review of a magistrate's order is de novo. United States v. Koenig, 912 F.2d-1190, 1191 (9th Cir. 1990).
Under 18 U.S.C. § 3142(f), the court may reopen a detention hearing at any time prior to trial if:
the judicial officer finds that information exists that was not known to the movant at the time of the hearing that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of such person as required and the safety of any other person and the community.
Courts have interpreted this provision strictly. United States v. Ward, 63 F.Supp.2d 1203, 1206-07 (CD. Cal. 1999); United States v. Dillon, 938 F.2d 1412, 1415 (1st Cir. 1991); United States v. Hare, 873 F.2d 796 (5th Cir. 1989). Thus, the moving party must show: "1) information now exists that was not known to the movant at the time of the initial detention hearing, and 2) the new information is material to release conditions regarding flight or dangerousness." United States v. Tommie, 2011 WL 2457521, *2 (D. Ariz. June 20, 2011); accord United States v. Flores, 856 F.Supp. 1400, 1405 (E.D. Cal. 1994).
During the May 9, 2012 hearing, Judge Acosta noted that defendant's initial detention hearing was preliminary only, and that consistent with the practice in the District of Oregon, initial detention is provided with leave to reopen.
As defendant correctly argues, some of the discovery was not available at the time of the initial detention hearing. Specifically, the lengthy information provided by Pretrial Services concerning his ties to the community was not available previously. The information provided by defendant's Nevada counsel concerning the status of his state court proceedings raising Padilla arguments also was not available previously. For all of these reasons, I reject the government's argument and conclude that the detention hearing was properly reopened.
This case involves the vexing interplay of three statutes: (1) the Bail Reform Act, 18 U.S.C. § 3142, which provides the procedure for pre-trial release; (2} 8 U.S.C. § 1326, which prohibits the...
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