United States v. Nunez-Soberanis, Case No.: 18cr4781-MDD

• Decision Date: 30 August 2019
• Docket Number: Case No.: 18cr4781-MDD
• Citation: 406 F.Supp.3d 835
• Parties: UNITED STATES of America, Plaintiff, v. Jose Luis NUNEZ-SOBERANIS, Defendant.
• Court: U.S. District Court — Southern District of California

406 F.Supp.3d 835

UNITED STATES of America, Plaintiff,

v.Jose Luis NUNEZ-SOBERANIS, Defendant.

Case No.: 18cr4781-MDD

United States District Court, S.D. California.

Signed August 30, 2019

Alexandra Foster, U.S. Attorneys Office, San Diego, CA, for Plaintiff.

Federal Defenders, Leila W. Morgan, Eric Studebaker Fish, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS AND SUPPLEMENTAL MOTION TO DISMISS THE [SECOND] SUPERSEDING INFORMATION

[ECF NOS. 47 and 51]

Hon. Mitchell D. Dembin, United States Magistrate Judge

Defendant is charged in a Second Superseding Information with violating 8 U.S.C. § 1325(a)(1) which provides, in relevant part, that "[a]ny alien who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers ... shall [be guilty of a misdemeanor]. (See ECF No. 60).¹ Defendant moves to dismiss the information on three grounds: (1) Congress violated the non-delegation doctrine when it enacted the statute; (2) Section 1325(a)(1) is impermissibly vague in violation of the Due Process Clause; and (3) the information fails to allege the required elements of § 1325(a)(1). (ECF Nos. 47, 51, 53)

A. Non-delegation Doctrine

Article 1, section 1 of the United States Constitution provides that "all legislative powers herein granted shall be vested in a Congress of the United States." The non-delegation doctrine generally forbids Congress from delegating to another branch of government "powers which are strictly and exclusively legislative." Gundy v. United States , ––– U.S. ––––, 139 S. Ct. 2116, 2123, 204 L.Ed.2d 522 (2019) (quoting Wayman v. Southard , 23 U.S. (10 Wheat.) 1, 42–43, 6 L.Ed. 253 (1825) ). But the Constitution does not "deny[ ] to the Congress the necessary resources of flexibility and practicality [that enable it] to perform its function[s]." Id. (quoting Yakus v. United States , 321 U.S. 414, 425, 64 S.Ct. 660, 88 L.Ed. 834 (1944) ). Congress's authority to confer substantial discretion on executive agencies to implement and enforce the laws is well established. Mistretta v. United States , 488 U.S. 361, 373-74, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (collecting cases where delegation was upheld and noting the Supreme Court has struck down only two statutes for impermissible delegation and both occurred in 1935).

Congress generally cannot delegate away the inherently legislative task of determining what conduct should be punished as a crime. United States v. Kozminski , 487 U.S. 931, 949, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988). The Supreme Court has held time and again, however, that "Congress simply cannot do its job absent an ability to delegate power under broad general directives." Gundy , 139 S.Ct. at 2123. Congress can, therefore, permit an executive-branch official to fill in the details of a legislative scheme as long as Congress "lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform." Id. at 2129 (quoting J. W. Hampton, Jr., & Co. v. United States , 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928) (brackets in original)).

1. Analysis

Defendant argues that Section 1325(a) violates the nondelegation doctrine because it permits executive branch officials the discretion to determine what constitutes a crime under Section 1325(a). Defendant interprets the statute to permit any "immigration officer[ ]" to designate the times and locations where entry into the United States is lawful. Defendant argues that this delegation is improper because Congress failed to provide any "intelligible principle" to guide and constrain that exercise of discretion. (ECF No. 47 at 2-9). The Government opposes arguing that Defendant's reading of the doctrine is far too broad because Congress was not required to "spell out" for the Executive Agency how to determine where and when ports of entry are open. (ECF No. 53 at 6).

The Court agrees with the Government's position. Defendant appears to conflate Congress's purpose in creating Section 1325(a) and the practical details of its implementation. Congress determined that there should be a proper location and procedure for an alien to seek admission to the United States. See 8 U.S.C. § 1225(a)(3) (requiring all applicants for admission to be inspected by immigration officers). Congress also established penalties for failing to follow those procedures. See 8 U.S.C. §§ 1321 – 1330. Section 1325(a) is one such provision. The details of where and when the ports of entry would be located was left to the executive agency responsible for staffing the facilities.

Defendant attempts to read into the statute a broader delegation than actually occurred by arguing that any individual immigration official can designate any piece of land as a place for entry. Not so. Congress requires that aliens seeking lawful entrance to the United States do so at a port of entry. See United States v. Corrales-Vazquez , 931 F.3d 944, 946 (9th Cir. 2019) ; United States v. Aldana, 878 F.3d 877, 882 (9th Cir. 2017). Ports of entry can only be designated or de-designated by the Secretary of Homeland Security subject to the Administrative Procedures Act. See 8 C.F.R. § 100.4(a). Ports of entry also necessarily include facilities, staffed by immigration officials that are set up to accept applications for admission. Aldana , 878 F.3d at 882. To interpret Section 1325(a) to permit a border patrol agent to designate a portion of the border fence "on a whim" is in direct conflict with Congress's clear statutory scheme.

In support of his argument, Defendant cites the Supreme Court's decision in Touby . Touby v. United States , 500 U.S. 160, 111 S.Ct. 1752 (1991). At issue there was a statute that allowed the Attorney General to temporarily designate a substance as a Schedule 1 Controlled Substance thereby making possession of that substance illegal. Id. at 165, 111 S.Ct. 1752. The Supreme Court in Touby held that the delegation was permissible, however, because Congress provided the Attorney General factors to consider before designating a new substance. Defendant argues the delegation at issue in Section 1325(a) is similar, but Congress provided no guidance as to where ports of entry should be open and their hours of operation.

The Court disagrees that the issue in Touby is similar to Section 1325(a). In Touby , the Attorney General had the authority to make the legal possession of a substance illegal. This is a discretionary act that expands the scope of criminal conduct under the statute. Legislative guidance was required. The practical issues of where and when ports of entry are open does not alter the scope of conduct considered criminal under Section 1325(a). The type of conduct prohibited remains the same regardless of what physical piece of ground a port of entry is on. Setting the location of ports of entry and hours of operation only affects when and where an alien may lawfully comply with Congress's directives. It does not change the scope of conduct that would subject an alien to criminal liability.

The Government cites to the most recent Supreme Court case dealing with the nondelegation doctrine to offer support for its position. In Gundy , the Court upheld a delegation to the Attorney General to determine when it would be feasible to require sex offenders convicted prior to the statute's enactment to register. In an analogous delegation as here, Congress determined that the registration requirements applied to pre-Act offenders but left the practical problems of implementation and when pre-Act offenders would be required to register to the Attorney General.

The Court finds the type of delegation under Section 1325(a) to be analogous to the delegation in Gundy . Congress determined that entering the United States outside a port of entry was prohibited and properly and practically delegated authority to implement Section 1325(a) to the Executive Branch, the agency that would be responsible for staffing and operating the ports of entry. The Court therefore concludes that the statute challenged by Defendant does not violate the nondelegation doctrine.

Accordingly, Defendant's Motion to Dismiss is DENIED.

B. Due Process Void for Vagueness Challenge

Defendant next argues that the Information must be dismissed because Section 1325(a)(1) is impermissibly vague in violation of the Due Process Clause. Defendant's argument is essentially the same as the argument discussed above. Specifically, Defendant contends Section 1325(a)(1) runs afoul of the Constitution because it allows "immigration officers" to decide on a "whim" and with the uttering of "magic words" what places and times to designate for entry. This, Defendant argues, at least permits arbitrary enforcement and subjects the statute to a facial attack. (ECF No. 47 at 14-16).

A statute can be impermissibly vague for either of two independent reasons.

First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Hill v. Colorado , 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Second, if it authorizes or even encourages arbitrary and discriminatory enforcement. Id. But if "it is clear what the ordinance as a whole prohibits," Grayned v. City of Rockford , 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), speculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid "in the vast majority of its intended applications." Hill , 530 U.S. at 733, 120 S.Ct. 2480 (quoting United States v. Raines , 362 U.S. 17, 23, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) ).

As the Government points out, Defendant is charged with "attempting" to enter the United States at a location other than as designated. (ECF No. 53 at 7). Consequently, the Government argues that how the area was...