United States v. Ceja-Melchor
| Decision Date | 08 April 2020 |
| Docket Number | Case No. 19-CR-00184-LHK |
| Citation | 445 F.Supp.3d 157 |
| Court | U.S. District Court — Northern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. Manuel CEJA-MELCHOR, Defendant. |
Rhona D. Taylor, Federal Public Defender, San Jose, CA, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS INDICTMENT
Re: Dkt. No. 17
Before the Court is Defendant Manuel Ceja-Melchor's ("Defendant") motion to dismiss the Indictment for illegal reentry following deportation in violation of 8 U.S.C. § 1326. ECF No. 26 ("Mot."). Having considered the filings of the parties, the relevant law, and the record in this case, the Court GRANTS Defendant's motion to dismiss the Indictment.
Defendant, a citizen of Mexico, entered the United States without inspection and, on or about June 13, 1991, adjusted his status to that of a lawful permanent resident. ECF No. 28-3 ("NTA"). Defendant has multiple criminal convictions including a March 5, 2012 conviction for the transportation of a controlled substance in violation of California Health and Safety Code Section 11352(a). Id. ; see also ECF No. 28 ("Vargas Decl.") ¶ 7.
On December 19, 2012, after the Government received a lead on Defendant and performed a criminal history check, Deportation Officer David Vargas prepared a Form I-862, Notice to Appear ("NTA") charging Defendant with removability under sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the Immigration and Nationality Act ("INA"). Vargas Decl. ¶¶ 7–8; NTA at 3. The NTA did not identify the address of the immigration court at which the NTA would be filed. NTA at 1. Instead, under the text, "YOU ARE ORDERED to appear before an immigration judge of the United States Department of Justice at:," the NTA was left blank. Id.
On December 20, 2012, Defendant was taken into custody. Vargas Decl. ¶ 9. Defendant was issued an Order of Release on Recognizance after the Government learned that numerous detention facilities had no available bed space, and Defendant promised not to violate any local, State, or Federal laws or ordinances. Id. ¶ 10.
On or about June 17, 2017, Defendant was arrested by the Salinas Sheriff's Department for possession and sale of a controlled substance, carrying loaded firearms, obstructing a public officer, driving with a suspended license, and a probation violation. Id. ¶ 12. Due to Defendants' failure to comply with the terms of his release, Defendant was taken back into custody on August 11, 2017.
On August 31, 2017, Defendant was issued a Notice of Hearing ("NOH") that informed him that he was scheduled for a custody hearing on September 20, 2017 at 1:00 p.m. at Immigration Court located at 630 Sansome Street, 4th Floor, Courtroom 2, San Francisco, CA 94111. See ECF No. 28-9 ("August 31, 2017 NOH"). At the September 20, 2017 hearing, Defendant, through his counsel, indicated that he wanted to be ordered removed from the United States. Vargas Decl. ¶ 14. Defendant's counsel, however, asked for a one-week continuance to ensure that Defendant truly wanted a removal order instead of a voluntary departure. Id. The Immigration Court granted the request for a continuance and issued a Notice of Hearing before the Immigration Court located at 630 Sansome Street, 4th Floor, Courtroom 2, San Francisco, CA 94111. Id. , see also ECF No. 28-10 ("September 20, 2017 NOH"). At the September 27, 2017 hearing, the Immigration Judge asked Defendant's counsel if Defendant wanted to consider voluntary departure. Defendant's counsel indicated yes, but the Immigration Judge ultimately denied voluntary departure and ordered Defendant removed. Vargas Decl. ¶ 15; ECF No. 28-11 ("September 2017 removal order"). Defendant waived his right to appeal. Id.
On April 18, 2019, a grand jury in the Northern District of California returned an Indictment ("Indictment") that charged Defendant with one count of violating 8 U.S.C. § 1326(a), Illegal Reentry of Removed Alien. ECF No. 1 ("Indictment"). Specifically, the grand jury charged as follows: "On or about April 4, 2019, in Monterey County in the Northern District of California, the [D]efendant, ... an alien, previously having been excluded, deported and removed from the United States on or about July 6, 2018, was found in the United States, with the Attorney General of the United States and the Secretary for Homeland Security not having expressly consented to a re-application by the [D]efendant for admission into the United States." Id. at 1.
On January 26, 2020, Defendant filed a motion to dismiss the Indictment. ECF No. 26 ("Mot."). On March 11, 2020, the Government opposed the motion, ECF No. 27 ("Opp'n"), and on April 1, 2020, Defendant filed a reply, ECF No. 32 ("Reply").
Under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), a defendant may move to dismiss an indictment on the ground that the indictment "fail[s] to state an offense." In considering a motion to dismiss an indictment, a court must accept the allegations in the indictment as true and "analyz[e] whether a cognizable offense has been charged." United States v. Boren , 278 F.3d 911, 914 (9th Cir. 2002). "In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, the district court is bound by the four corners of the indictment." Id. A motion to dismiss an indictment can be determined before trial "if it involves questions of law rather than fact."
United States v. Shortt Accountancy Corp. , 785 F.2d 1448, 1452 (9th Cir.), cert. denied , 478 U.S. 1007, 106 S.Ct. 3301, 92 L.Ed.2d 715 (1986).
"For a defendant to be convicted of illegal reentry under 8 U.S.C. § 1326, the Government must establish that the defendant left the United States under order of exclusion, deportation, or removal, and then illegally reentered." United States v. Raya-Vaca , 771 F.3d 1195, 1201 (9th Cir. 2014) (internal quotation marks and citation omitted). "A defendant charged under § 1326 has a due process right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction." Id. (internal quotation marks and citation omitted).
To demonstrate that a prior deportation cannot serve as the basis for an indictment for illegal reentry, 8 U.S.C. § 1326(d) requires that a defendant "demonstrate that (1) he exhausted the administrative remedies available for seeking relief from the predicate removal order; (2) the deportation proceedings ‘improperly deprived [him] of the opportunity for judicial review’; and (3) the removal order was ‘fundamentally unfair.’ " Id. (quoting 8 U.S.C. § 1326(d) ) (brackets in original). "To satisfy the third prong—that the order was fundamentally unfair—the defendant bears the burden of establishing both that the deportation proceeding violated his due process rights and that the violation caused prejudice." Id. (internal quotation marks, citation, and brackets omitted).
In Defendant's motion to dismiss the Indictment, Defendant asserts that the United States Department of Homeland Security's failure to file a proper Form I-862, Notice to Appear ("NTA"), with the Immigration Court deprived the Immigration Court of jurisdiction to remove Defendant. Mot. at 2–7. Defendant asserts that this failure provides the grounds for Defendant to collaterally attack the Indictment under 8 U.S.C. § 1326(d). Id. at 7–8. Defendant also claims that the Court should dismiss the Indictment because Defendant received ineffective assistance of counsel and because the Immigration Judge failed to advise Defendant of his eligibility for discretionary relief. Id. at 8–10.
For the reasons outlined below, the Court agrees with Defendant that the Immigration Court lacked jurisdiction to issue the September 2017 removal order because of the defective NTA. Further, this lack of jurisdiction permits Defendant to collaterally attack the Indictment under 8 U.S.C. § 1326(d). Because these facts are sufficient to warrant dismissal of the Indictment, the Court need not address Defendant's additional arguments.
Defendant argues that the September 2017 removal order cannot constitute a prior lawful deportation that supports the single count violation of 8 U.S.C. § 1326(a), Illegal Reentry of Removed Alien, charged in the Indictment. Mot. at 1. This is so, Defendant claims, because the NTA "did not identify the court where the NTA would be filed, [which failed] to vest the Court with jurisdiction" pursuant to 8 C.F.R. § 1003.14(a) and 8 C.F.R. § 1003.15(b)(6). Id. at 2.
In response, the Government makes two arguments. First, the Government asserts that the requirements of 8 C.F.R. § 1003.14(a) is not actually jurisdictional in nature. Instead, the Government maintains that 8 C.F.R. § 1003.14(a) sets forth only a "claim-processing rule" that does not limit the Immigration Court's adjudicatory authority. Opp'n at 4–13. Second, the Government asserts that even if 8 C.F.R. § 1003.14(a) is jurisdictional in nature, Defendant had "actual notice" of the removal hearing such that jurisdiction adequately vested in the Immigration Court in any event. Id. at 13–15.
The Court agrees with Defendant. The defective NTA deprived the Immigration Court of jurisdiction over Defendant for the purposes of the September 2017 removal order. The Government's actions following the filing of the defective NTA did not vest the Immigration Court with jurisdiction.
The Court begins by providing a brief background of the statutory and regulatory scheme that sets forth the contents an NTA must contain. The Court then analyzes the question of whether 8 C.F.R. § 1003.14(a) and 8 C.F.R. § 1003.15(b)(6) set forth jurisdictional rules. Finally, the Court turns to the question of whether Defendant's purported "actual notice" of the address of the Immigration Cou...
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