United States v. Perez-Juarez
| Decision Date | 11 August 2015 |
| Docket Number | No. 2:15-cr-00063-KJM,2:15-cr-00063-KJM |
| Court | U.S. District Court — Eastern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. NADIA PEREZ-JUAREZ, Defendant. |
This matter is before the court on defendant's motion to dismiss the indictment charging her with illegal reentry into the United States in violation of 8 U.S.C. § 1326. (ECF No. 6.) Defendant argues in essence that because the predicate removal order is invalid and her removal was fundamentally unfair, this court should dismiss the indictment. (ECF No. 11.) The court held a hearing on the matter on July 1, 2015, at which Katherine Lydon appeared for the government and Sean Riordan appeared for defendant. (ECF No. 19.) Following the hearing, the parties filed supplemental briefing. Having considered the briefing, the parties' arguments at hearing, and good cause appearing, the court GRANTS defendant's motion as explained below.
Defendant Nadia Perez-Juarez, a native and a citizen of Mexico , lived in the United States since she was an infant (ECF No. 11 at 2). In 2007, defendant pled guilty in state court to voluntary manslaughter under California Penal Code section 192(a).(Id. at 3.) At the conclusion of her sentence in 2013, the federal government initiated removal proceedings against her. (ECF No. 11-2, Exs. F-H.) At the removal hearing on September 26, 2013, defendant's pro bono counsel "concede[d] the charge of removability." (Removal Proceedings Tr. at 18:16-19, ECF No. 11-2, Ex. I; Paulus Decl. ¶ 4, ECF No. 20-1, Ex. Q.1) Counsel sought relief, however, under the Convention Against Torture (CAT) based on defendant's mental health conditions and sexual identification as a lesbian. (Removal Proceedings Tr. at 18:19-24, 19:15-16.)
Counsel had two reasons for conceding defendant's removability. (Paulus Decl. ¶¶ 3-5.) First, she relied on defendant's prior pro bono lawyer, who informed her "she had researched [defendant's] case, and that relief under the . . . [CAT] was her only viable option." (Id. ¶ 3.) Second, while counsel "requested and was granted a continuance of about a month to research the charges . . . [,]" she only "consulted the 'Quick Reference Chart for Determining Immigration Consequences of Selected California Offenses' published by the Immigration Legal Resource Center in January 2013." (Id. ¶ 4.) That chart "classified a California conviction for voluntary manslaughter as an 'aggravated felony' . . . ." (Id.) "But the chart also contained disclaimers." (Id.) Counsel "did not do case law research to determine whether there was a serious argument that a California voluntary manslaughter conviction is not categorically an aggravated felony crime of violence." (Id.)
Based on the record defendant's counsel did make, the immigration judge ordered defendant removed and denied her application for relief under the CAT. (ECF No. 11-2, Ex. J.) Defendant appealed to the Board of Immigration Appeals (BIA), but the BIA affirmed the immigration judge's ruling. (Id., Ex. L.) Defendant then filed a petition for review of the BIA decision and a motion for a stay of removal with the Ninth Circuit. (Id., Ex. N.) After her petition for stay of removal was denied, defendant was removed to Mexico in November 2014. (ECF No. 11 at 5.) Defendant's petition for review is still pending before the Ninth Circuit. (Id.) That petition does not challenge the immigration judge's determination of defendant'sremovability; rather, it challenges only the determination whether she was entitled to deferral of removal under the CAT. (Id. at 5-6.)
In May 2015, defendant was arrested and charged in this case with unlawful reentry into the United States on or about March 15, 2015. (ECF No. 6.) Defendant is in custody. (ECF No. 3.) In her motion to dismiss, she argues the charge against her is based on an invalid removal order. (ECF No. 11-1 at 1.) The removal order was invalid, defendant argues, because even though California voluntary manslaughter is not considered an aggravated felony under the immigration laws, the immigration judge erroneously characterized it as an aggravated felony. (Id. at 1 (citing Purohit v. Holder, 441 F. App'x 458, 460 (9th Cir. 2011)). Defendant also argues her removal was fundamentally unfair because her attorney rendered ineffective assistance of counsel by conceding defendant's removability. (ECF No. 11-1 at 1.) The court resolves the pending motion on the latter ground.
Under Federal Rule of Criminal Procedure 12(b), "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits." "A motion to dismiss is generally capable of determination before trial if it involves questions of law rather than fact." United States v. Nukida, 8 F.3d 665, 669 (9th Cir. 1993) (internal quotation marks omitted). In considering a pretrial motion to dismiss an indictment, the court "must presume the truth of the allegations in the charging instruments." United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996). Further, the court should not generally consider "evidence not appearing on the face of the indictment." Id. A court, however, "may make preliminary findings of fact necessary to decide the legal questions presented by the motion," as long as its findings do not "invade the province of the ultimate finder of fact." Nukida, 8 F.3d at 669. And no prohibition bars the consideration of extrinsic evidence for purposes of a Rule 12(b) motion to dismiss in criminal cases. United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986).
At the same time, Title 8 provides that in a criminal proceeding filed under that section, an alien2 may not challenge the deportation's validity unless the alien demonstrates that:
8 U.S.C. § 1326(d); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047-48 (9th Cir. 2004) . "An underlying removal order is fundamentally unfair if: (1) [a defendant's] due process rights were violated by defects in [her] underlying deportation proceeding, and (2) [she] suffered prejudice as a result of the defects." Ubaldo-Figueroa, 364 F.3d at 1048 ().
As noted, defendant here is charged with illegal reentry into the United States in violation of 8 U.S.C. § 1326. The elements of that crime are: (1) the defendant is an alien; (2) the defendant was deported and removed from the United States; and (3) the defendant voluntarily reentered and remained in the United States without the consent of the Attorney General. United States v. Gondinez-Rabadan, 289 F.3d 630, 632-33 (9th Cir. 2002). Defendant collaterally attacks the underlying removal order. (ECF No. 11.) Defendant argues, among other things, she received ineffective assistance of counsel at the removal hearing. (Id.)
While there is no constitutional right to counsel in deportation proceedings, defendant has a right to due process under the Fifth Amendment. Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1045 (9th Cir. 2000). To establish ineffective assistance of counsel in immigration proceedings based on a due process violation, a petitioner must show (1) that "the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting [her] case," and (2) prejudice. Jie Lin v. Ashcroft, 377 F.3d 1014, 1023-24 (9th Cir. 2004) (internal quotation marks omitted). An alien's "right to a full and fair presentation of [her] claim include[s] the right to have an attorney who would present a viable legal argument on [her] behalf supported by relevant evidence, if [she] could find one willing and able to do so." Id. at 1025. The Ninth Circuit has found ineffective assistance of counsel where an attorney did not make "a considered determination as to the viability of arguments that would benefit an alien . . . ." United States v. Lopez-Chavez, 757 F.3d 1033, 1041 (9th Cir. 2014). The Ninth Circuit "has also found failure to perform legal research to be ineffective performance by an attorney." Id.
For example, in Jie Lin, the attorney's "lack of preparation prevented her from researching and presenting basic legal arguments fundamental to the asylum claim." Jie Lin, 377 F.3d at 1024 (emphasis in original). Likewise, the "BIA . . . has found ineffective assistance of counsel and allowed the withdrawal of a concession where an attorney conceded removability after failing to research and advise a client that there [was] no sound basis for the charges." Lopez-Chavez, 757 F.3d at 1042 (internal quotation marks omitted). In the same vein, where it was evident that counsel did not do "the minimal research that would have allowed him to acquire an understanding of immigration proceedings and would have revealed the key precedential BIA decision concerning the ground for . . . removability," the Ninth Circuit has found an alien was prevented from reasonably presenting the case. Id.
Here, at the time of defendant's removal proceedings in September 2013, a competent immigration attorney would have been aware of Purohit v. Holder, 441 Fed. App'x 458, 460 (9th Cir. 2011). That decision explicitly addressed the issue of whether voluntarymanslaughter under California law is categorically a crime of violence and found that it is not. Id. In Purohit, the...
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