United States v. Osorio, Case No. 17-CR-00507-LHK
| Decision Date | 16 January 2019 |
| Docket Number | Case No. 17-CR-00507-LHK |
| Court | U.S. District Court — Northern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JORGE ARTURO ROJAS OSORIO, Defendant. |
Before the Court is Defendant Jorge Arturo Rojas-Osorio's motion to dismiss indictment, filed on November 2, 2018. ECF No. 32 ("Mot."). In the motion, Defendant seeks to dismiss his Indictment for illegal reentry on the ground that the removal on which the Indictment for illegal reentry was based was void because the IJ lacked jurisdiction over the removal proceedings. The government opposed on December 5, 2018. ECF No. 38 ("Opp'n"). Defendant replied on December 19, 2018. ECF No. 41 ("Reply"). Having considered the submissions of the parties, the relevant law, and the record in this case, Defendant's motion to dismiss the indictment is GRANTED with prejudice.
Defendant is citizen of Mexico who is also known under the aliases Juan Jose Rodrigo-Lara and Carlos Arturo Linares Rojas. On August 21, 1997, Defendant came into Immigration and Naturalization Services ("INS") custody from King County Sheriff's Department. ECF No. 38-1 ("Norris Decl.") at 2. On August 21, 1997, Defendant was served a Notice to Appear that alleged that Defendant was removable for his unlawful presence in the United States and for committing first degree theft in violation of RCW 9a.56.030(1)(a), a crime of moral turpitude in the state of Washington. See Mot., Exh. A ("Notice to Appear") at 1. The Notice to Appear provided no specific date or time for Defendant's hearing, but instead stated only:
See id. Under the two blank lines, the words "(Date)" and "(Time)" were written in small lettering to indicate what information should be included on those two blank lines. See id.
In support of its opposition to the instant motion, the government attaches the declaration of Deportation Officer Courtney Norris. See Norris Decl. Officer Norris does not claim to have personal knowledge of Defendant's case, but rather says only that he "reviewed the Alien file of Juan Jose RODRIGO-Lara a.k.a. Jorge Arturo Rojas-Osorio." Id. at 2. Officer Norris asserts that on September 2, 1997, before a hearing was commenced, the Defendant was returned to the custody of King County Sheriff's Department to answer a warrant. Id.
There is a significant factual dispute between the parties as to what happened next. According to the government, on April 21, 2005, after serving a seven-year sentence for the first degree theft conviction, Defendant was returned to Immigration and Customs Enforcement ("ICE") custody. Id. Defendant takes issue with Officer Norris's assertion that Defendant served a seven-year sentence for the first degree theft conviction because, according to Defendant, the sentence imposed was only 90 days, not seven years. See Reply at 11 ().
On April 29, 2005, ICE notified the Executive Office of Immigration Review ("EOIR") in Seattle that Defendant was in ICE custody as was documented in Form I-830. Norris Decl. at 2; see also Norris Decl., Exh. A at 5 ("Notice to EOIR: Alien Address"). The EOIR court clerk and the ICE docket officer then set the date of Defendant's immigration hearing. Norris Decl. at 2.
According to Officer Norris, "[a] second notice with the exact date, place and time of [Defendant's] hearing would have been communicated to [Defendant] through" what is called a kite," or a "messaging system between persons incarcerated and detained docket case managers." Id. at 2-3 (emphasis added). Officer Norris elaborates on how a kite works in his declaration: Id. at 2. However, Officer Norris does not assert that Defendant actually received a kite. Moreover, Defendant asserts in his declaration that "[a]fter serving my sentence and being immediately placed in the custody of immigration, I never received information about when and where my removal hearing would take place." ECF No. 42 ("Rojas-Osorio Decl.") ¶ 8.
Regardless, Defendant's removal hearing ultimately took place on May 9, 2005 via a video conference. The parties provided a CD containing the audio from Defendant's removal hearing. See Mot., Exh. B ("Removal Hearing"). The audio indicates that Immigration Judge ("IJ") Edward R. Kandler presided from Seattle, Washington, while Defendant was in the Northwest Detention Center located in Tacoma, Washington. See id. Defendant appeared without an attorney and was assisted by a Spanish translator. See id. Judge Kandler first advised Defendant that he had a right to a lawyer and asked Defendant if Defendant would like to proceed without a lawyer or if Defendant would like a continuance to obtain a lawyer. See id. Defendant responded that he would like to continue without a lawyer. See id.
In his instant motion, Defendant asserts, inter alia, that Judge Kandler did not meaningfully advise Defendant of his right to seek voluntary departure. See Mot. at 18-19.
The conversation as to the availability of voluntary departure during the removal proceeding occurred as follows. First, Judge Kandler asked counsel for the government whether there was any statutory bar to voluntary departure. See Removal Hearing. Government counsel responded that Defendant had a 1997 theft conviction. See id. Judge Kandler noted that the theft conviction was an adverse factor but added that "it happened over five years ago." See id. Government counsel then added that Defendant had a 1998 first degree robbery conviction. Id. Judge Kandler declined to grant voluntary departure based on the two prior convictions. See id. Judge Kandler made no further statements regarding voluntary departure. See id.
On May 9, 2005, Judge Kandler ordered Defendant removed from the United States. See id.; see also Mot., Exh. C ("Removal Order"). Defendant was advised that he had a right to appeal the decision, which Defendant agreed to waive. See Removal Hearing. On May 10, 2005, Defendant was removed. See Mot., Exh. D ("Warrant of Removal").
At some point, the Defendant returned to the United States. On October 13, 2006, a Notice of Intent/Decision to Reinstate Prior Order was issued ordering Defendant's removal based on the prior 2005 Removal Order. Mot., Exh. E ("2006 Reinstatement"). On January 31, 2011, a Notice of Intent/Decision to Reinstate Prior Order was issued, again based on the same 2005 Removal Order. Mot., Exh. F ("2011 Reinstatement"). The parties do not explain or cite to any materials that explain what happened in the intervening five years.
On September 21, 2017, a grand jury in the Northern District of California returned an Indictment, charging Defendant with one count of a violation of 8 U.S.C. § 1326, Illegal Re-Entry Following Deportation. ECF No. 3. The Indictment stated Defendant, "previously having been excluded, deported and removed from the United States," 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 defendant for admission into the United States, in violation of Title 8, United States Code, Section 1326(a) and (b)(2)." Id.
On October 23, 2018, Defendant filed a motion to withdraw guilty plea. See ECF No. 29.In the motion, Defendant argued that the United States Supreme Court's recent decision in Pereira v. Sessions, 138 S. Ct. 2105 (Jun. 21, 2018), gave Defendant a new basis to collaterally attack Defendant's prior deportation, an element of Defendant's underlying 8 U.S.C. § 1236 prosecution, because Defendant's Notice to Appear in the underlying removal proceeding failed to specify the date and time of the hearing and because Pereira held that "[a] putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a 'notice to appear under section 1229(a).'" See id.; see also Pereira, 138 S. Ct. at 2113-14. On November 2, 2018, the government opposed the motion to withdraw guilty plea, ECF No. 33, and the Defendant replied on November 8, 2018, ECF No. 34. On November 20, 2018, the Court found that fair and just reasons existed for allowing Defendant to withdraw his guilty plea, and the Court granted Defendant's motion to withdraw guilty plea. ECF No. 36.
In the meantime, Defendant filed the instant motion to dismiss on November 2, 2018. See Mot. The government opposed on December 5, 2018. See Opp'n. The Court denied Defendant's motion for leave to file an oversized reply brief on December 18, 2018, ECF No. 40, and on December 19, 2018, Defendant replied. See Reply. On December 19, 2018, Defendant also filed a declaration in support of the Reply. See Rojas-Osorio Decl.
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...
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