United States v. Garcia-Morales

• Decision Date: 08 December 2015
• Docket Number: Case No.: 3:15-cr-01463-GPC-1
• Citation: 150 F.Supp.3d 1201
• Parties: United States of America, Plaintiff, v. Jose Luis Garcia-Morales, Defendant.
• Court: U.S. District Court — Southern District of California

150 F.Supp.3d 1201

United States of America, Plaintiff,

v.Jose Luis Garcia-Morales, Defendant.

Case No.: 3:15-cr-01463-GPC-1

United States District Court, S.D. California.

Signed December 08, 2015

U.S. Attorney CR, U.S. Attorneys Office Southern, District of California, San Diego, CA, for Plaintiff.

ORDER GRANTING MOTION TO DISMISS INDICTMENT DUE TO INVALID DEPORTATION

Hon. Gonzalo P. Curiel, United States District Judge

Before the Court is Defendant Jose Luis Garcia-Morales' (“Defendant”) October 16, 2015 motion to dismiss his indictment due to invalid deportation. Def. Mot., ECF No. 33. The motion has been fully briefed. Pl. Resp., ECF No. 34; Def. Reply, ECF No. 35. Upon consideration of the moving papers and the applicable law, the Court hereby GRANTS Defendant's motion to dismiss Count 1 of the indictment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant is a 60-year-old native and citizen of Mexico who became a legal permanent resident of the United States in 1989. On January 28, 1993, Defendant was convicted under Cal. Penal Code § 288(a) for sexually molesting his 13-year-old niece. See Nov. 15, 2004 BIA Order (“First BIA Order”) 2, Def. Mot., Ex. C. Following a guilty plea, Defendant served 8 months in prison and was registered as a sex offender. Id. ; see also Def. Mot., Ex. L. On January 20, 2004, the legacy Immigration and Naturalization Service (“INS”) initiated removal proceedings against Defendant based on the 1993 conviction, which was an aggravated felony. See Notice of Removal Proceedings, Def. Mot, Ex. A.

Defendant then requested § 212(c) relief from deportation before the Immigration Judge (“IJ”). March 31, 2004 IJ Order (“First IJ Order”) 2, Def. Mot., Ex. B.¹ On March 31, 2004, the IJ issued an oral decision granting Defendant discretionary relief under § 212(c). See generally id. The IJ found that unusual or outstanding equities existed favoring the grant of a waiver, including the death of one of Defendant's children while in the custody of the state foster care system after Defendant's children were taken into state custody following his arrest for child molestation, the Defendant caring for another of his children with learning disabilities, and the Defendant caring for a third child with severe medical disabilities, including cerebral palsy, legal blindness, and quadriplegia. See id. at 14. The IJ then weighed the negative factors of the Defendant's child molestation conviction: elements of Defendant's testimony before the IJ as compared to Defendant's statements in the police report for the 1993 child molestation investigation; and a driving under the influence (“DUI”) conviction, against the positive factors of: Defendant's long residency; his children which reside in the United States; his rehabilitation insofar as he completed parole and there was a lack of criminal arrest and conviction since parole was completed; Defendant's payment of taxes and Social Security; and Defendant's “long” but “spotty” record of employment. Id. at 15–16. The IJ noted that while the IJ had difficulties with the inconsistencies of the Defendant's testimony regarding the scope of the child molestation and his alcohol use, in general, the IJ found the testimonies of Defendant, his wife, the nurse who cared for Defendant's quadriplegic daughter, and Defendant's other 14-year-old daughter, Elizabeth—all of whom testified regarding Defendant's rehabilitation and his importance to the stability of his family—to be credible. See id. at 13; see also id. at 4–13, 16. The IJ also attributed “limited weight when determining credibility” to the 1993 police report, since it was presented in isolation without “anything else presented as to the creation of the document.” Id. at 16. The IJ found that, overall, the positive factors outweighed the negative factors and Defendant merited a § 212(c) waiver.

The Department of Homeland Security (“DHS”), to which the requisite responsibilities of the INS had been transferred in the intervening period between the INS' initiation of removal proceedings and the First IJ Order, appealed the IJ's decision to the BIA. First BIA Order 1. On November 15, 2004, the BIA sustained the appeal, reversed the IJ's order, and directed Defendant's removal to Mexico. Id. The BIA found that since it was undisputed that Defendant was statutorily eligible for a § 212(c) waiver, the sole question on appeal was whether the respondent merited a favorable exercise of discretion under the Marin test. Id. The BIA also found that the applicable standard of review was de novo. Id. (citing 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board may review questions of law, discretion, and judgment and all other issues in appeals from decisions of immigration judges de novo.”)).

The BIA then found that the negative factors outweighed the positive factors, citing: Defendant's child molestation conviction; Defendant's previous convictions for grand theft auto, receipt of stolen property, and DUI; Defendant's violations of immigration laws prior to 1989; inconsistencies between Defendant's testimony before the IJ and the 1993 police report as to the nature of the child molestation; and inconsistencies between the testimony of Defendant and his wife before the IJ as to the extent of Defendant's alcohol use. Id. at 2–3. While the BIA did find that Defendant's wife was a lawful permanent resident, that he had four United States citizen children, including one who was “profoundly disabled” and one who had a learning disability, and that Defendant's removal would cause the family “emotional hardship,” the BIA questioned the extent to which Defendant provided the family with support, given Defendant's absence from the home due to court orders stemming from the child molestation conviction; the fact that medical expenses for the quadriplegic child were paid for by the state of California; and Defendant's “irregular employment history.” Id. at 3. The BIA found that Defendant “does not own substantial property, has not served in the armed forces, and does not appear to have been a person of any particular value to his community at large.” Id. The BIA then questioned whether Defendant had truly been rehabilitated, finding that the inconsistencies in Defendant's testimony as to the nature of the child molestation and his alcohol use suggested “an effort on the [Defendant's] part to minimize the truly heinous nature of his conduct.” Id.

On December 13, 2004, Defendant filed a motion for reconsideration with the BIA, arguing that the BIA had failed to properly weigh the discretionary factors in reversing the IJ's decision. See Pl. Opp., Ex. 7 at 2. On December 14, 2004, Defendant petitioned for review of the BIA's decision by the Ninth Circuit and requested a stay of removal. See Ninth Circuit Petition, Def. Mot., Ex. D. Defendant argued that a stay was warranted since he had probable success on the merits of the appeal, because the BIA improperly speculated as to the extent of Defendant's rehabilitation and wrongly weighed the discretionary factors. See id. at 4–11. On January 3, 2005, the Ninth Circuit granted the stay. See Def. Mot., Ex. 5.

On February 9, 2005, the BIA denied Defendant's motion to reconsider. See Feb. 9, 2005 BIA Order (“Second BIA Order”), Pl. Opp., Ex. 10. The BIA found that it had properly weighed the discretionary factors in its first order and that its first order was free from legal and factual error. Id. at 1. Instead of ordering the Defendant to be removed again, however, the BIA sua sponte reopened the removal proceedings and remanded the case to the IJ for the sole purpose of entering an order of removal against the respondent. Id. at 2. The BIA did so because in the intervening period between its first order on November 15, 2004, and its second order on February 9, 2005, the Ninth Circuit decided in Molina – Camacho v. Ashcroft , 393 F.3d 937, 941 (9th Cir.2004), overruled by Lolong v. Gonzales , 484 F.3d 1173, 1177 (9th Cir. 2007),² that the BIA cannot issue a removal order in the first instance, but must remand to the IJ for the IJ to issue a removal order. Id.

On April 17, 2006, an IJ accordingly denied Defendant a § 212(c) waiver and directed his removal. See Apr. 17, 2006 IJ Order (“Second IJ Order”), Def. Mot., Ex. G. Defendant appealed to the BIA. See Pl. Opp., Ex. 12. In this appeal, Defendant did not raise the same issues as in Defendant's December 13, 2004 appeal to the BIA or the December 14, 2004 appeal to the Ninth Circuit, but instead, argued for the first time that Defendant was not removable because his 1993 child molestation conviction was not for an aggravated felony. See id. at 1–2.

On February 4, 2008, the BIA denied Defendant's appeal, rejecting Defendant's argument that his conviction was not an aggravated felony. See February 4, 2008 BIA Order (“Final BIA Order”), Def. Mot., Ex. H. Defendant did not petition the Ninth Circuit to review this decision. On April 28, 2008, Defendant departed from the United States pursuant to the removal order. Pl. Opp., Ex. 13. On September 19, 2008, the Ninth Circuit denied Defendant's December 14, 2004 petition for review of the November 15, 2004 First BIA Order on the grounds that they lacked jurisdiction over the petition, because the First BIA Order was no longer a final order of removal once the BIA decided sua sponte in its February 9, 2005 Second BIA Order to reopen the case and remand to the IJ for the entry of a final order of removal. Id. at 2.

On April 18, 2015, Defendant was arrested while attempting to reenter the United States at the San Ysidro Port of Entry in California. Defendant was charged with three counts: (1) attempted reentry of a removed alien under 8 U.S.C. § 1326 ; (2) fraud or misuse of a visa, permit or other document in order to gain admission to the United States under 18 U.S.C. § 1546(a) ; and (3) aggravated identity theft under 18 U.S.C. § 1028(a). Indictment, ECF No. 1.

On October 16, 2015, Defendant filed the present motion to...