United States v. Reyes

• Decision Date: 02 November 2012
• Docket Number: No. CR–12–0155 EMC.,CR–12–0155 EMC.
• Citation: 907 F.Supp.2d 1068
• Parties: UNITED STATES of America, Plaintiff, v. Javier Francisco REYES, Defendant.
• Court: U.S. District Court — Eastern District of California

907 F.Supp.2d 1068

UNITED STATES of America, Plaintiff,

v.Javier Francisco REYES, Defendant.

No. CR–12–0155 EMC.

United States District Court,

N.D. California.

Nov. 2, 2012.

Mark Kang, U.S. Attorney's Office, San Francisco, CA, for Plaintiff.

Shawn Halbert, Federal Public Defender, San Francisco, CA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS INDICTMENT

(Docket No. 12)

EDWARD M. CHEN, District Judge.

Defendant Javier Francisco Reyes has filed a motion to dismiss his indictment for illegal reentry in violation of 8 U.S.C. § 1326. He contends that his prior deportation, a predicate to the § 1326 charge, was invalid. Specifically, he collaterally attacks his underlying removal proceeding on the ground that his due process rights were violated. Having considered the parties' briefing and oral argument and the record before this Court, and for the reasons set forth below, the Court GRANTS Defendant's motion to dismiss the indictment.

I. FACTUAL & PROCEDURAL BACKGROUND

The material facts are not disputed.¹ Defendant was born in Mexico. Mot. at 2, Docket No. 12. His father died when Defendant was four years old, and his mother's health problems made it impossible for her to support her family. Id. Defendant dropped out of school at age eight to provide supplemental financial support. Id. In 2001, at age 14, he entered the United States in order to earn money. Javier Reyes Decl. ¶ 1, Docket No. relatives in and around Santa Rosa and San Jose. Mot. at 3. He has worked picking fruit since his arrival in this country. Id. Defendant is currently the sole financial support of his girlfriend and their baby son who was born in the United States on January 1, 2012, and is thus a U.S. citizen. Reyes Decl. ¶ 3. He does not have lawful immigration status in this country. Mot. at 3.

In February of 2009, Mr. Reyes was convicted of possessing a short-barreled shotgun in violation of California Penal Code section 12020(a)(1). Abstract of Judgment, Docket No. 16–1. He served a 16–month sentence in San Quentin State Prison following a guilty plea in Sonoma County Superior Court. Mot. at 2; Opp'n at 3, Docket No. 15.

While in San Quentin, Defendant came to the attention of the Department of Homeland Security (“DHS”), on September 17, 2009. Mot. at 3. After interviewing Defendant, Immigration Enforcement Official Agent Dedric Cutrer determined that Defendant would be “processed as [an] Administrative Removal....” Mot. at 2; Opp'n at 3. The Notice of Intent to Issue a Final Administrative Order (“Notice of Intent”) alleged that Defendant was deportable because of his conviction for an aggravated felony under 8 U.S.C. § 1101(a)(43)(A). Mot. at 3. The Notice of Intent also indicated that as a result of his aggravated felony conviction, Defendant was subject to expedited removal from the United States without the benefit of a hearing before an immigration judge. Id. Finally, the Notice of Intent informed the defendant of his right to be represented by counsel and of the 14 day period in which to file a review of the order to a U.S. Circuit Court of Appeals. Opp'n at 3. DHS issued the Notice of Intent on September 11, 2009, and Defendant signed it on October 2, 2009. Mot. at 12. The Notice of Intent included a waiver of Defendant's right to contest his deportation and judicial review. Id. The Notice of Intent submitted in evidence is in English. Notice of Intent, Docket No. 12–3. The government asserts that the document was orally translated for Defendant prior to his signing it, while the Defendant states that it “does not even appear to have been translated for him.” Opp'n at 3; Reply, Docket No. 21 at 3.

On October 9, 2009, Defendant was issued a Final Administrative Removal Order and removed from the United States to Mexico on the same day. Opp'n at 3; Mot. at 4. On January 25, 2012, Defendant came to the attention of DHS agents while at the Sonoma County Jail in Santa Rosa. Mot. at 3. A grand jury in the Northern District of California returned an indictment against Defendant for illegal reentry based on his October 2, 2009 removal from the United States. Indictment, Docket No. 1; Opp'n at 3. Defendant filed a motion to dismiss on July 18, 2012. The government filed an opposition on August 8, 2012, to which Defendant replied on September 26, 2012. Docket Nos. 15, 21. After a hearing on the motion to dismiss before this Court on October 3, 2012, at the Court's invitation, both parties filed supplemental briefing. Docket Nos. 23–25.

II. DISCUSSION

A. Legal Standard

“A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has a due process right to bring a collateral attack challenging the validity of his underlying deportation order because it serves as a predicate element of his conviction.” United States v. Melendez–Castro, 671 F.3d 950, 953 (9th Cir.2012) (citing United States v. Ubaldo–Figueroa, 364 F.3d 1042, 1047 (9th Cir.2004)). To succeed on such a collateral attack, a defendant must demonstrate: “(1) that he exhausted all administrative remedies available to him to appeal his removal order, (2) that the underlying removal proceedings at which the order was issued ‘improperly deprived [him] of the opportunity for judicial review’ and (3) that ‘the entry of the order was fundamentally unfair.’ ” United States v. Ortiz–Lopez, 385 F.3d 1202, 1203–4 (9th Cir.2004) (per curiam) (quoting 8 U.S.C. § 1326(d)). “An underlying removal order is ‘fundamentally unfair’ if: (1) [a defendant's] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” Ubaldo–Figueroa, 364 F.3d at 1048 (citation and quotations omitted).

B. Fundamental Unfairness1. Due Process

Defendant argues that the underlying removal proceeding violated his due process rights. Specifically, he contends that the DHS officer made an erroneous determination that his predicate California offense was an aggravated felony, which resulted in an expedited removal that deprived him of his right to be informed of his potential eligibility for voluntary departure in lieu of removal under 8 U.S.C. § 1229c(a). Mot. at 9. The government maintains that Defendant's conviction under California Penal Code section 12020(a)(1) for possession of a short-barreled shotgun does constitute an aggravated felony, rendering Defendant ineligible for both a hearing in front of an immigration judge and voluntary departure. Opp'n at 2. Defendant contends that his conviction did not constitute an aggravated felony and that he was therefore entitled to seek voluntary departure. If Defendant's contention is correct, he was deprived of crucial process as described below.

When a non-citizen is alleged by the DHS to be removable, the default legal course is to first issue a Notice to Appear. 8 U.S.C. § 1229(a)(1). The respondent then has the opportunity to appear before an immigration judge (“IJ”) for a removal hearing. Id. If the IJ finds that the respondent is removable, she has a mandatory duty to inform him of any apparent eligibility for relief. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000) (internal citations omitted). This includes the right to request voluntary departure in lieu of removal. United States v. Ortiz–Lopez, 385 F.3d at 1204 (recognizing due process violation where IJ failed to inform respondent of eligibility for voluntary departure under 8 U.S.C. § 1229c(a)). “[W]here the record, fairly reviewed by an individual who is intimately familiar with the immigration laws—as IJs no doubt are—raises a reasonable possibility that the petitioner may be eligible for relief, the IJ must advise the alien of this possibility and give him the opportunity to develop the issue.” Moran–Enriquez v. Immigration and Naturalization Service, 884 F.2d 420, 423 (9th Cir.1989). Failure of the IJ to advise alien as to eligibility for relief from deportation amounts to a denial of due process. United States v. Ubaldo–Figueroa, 364 F.3d at 1048;United States v. Gonzalez–Valerio, 342 F.3d 1051, 1054 (9th Cir.2003) (internal citations omitted) (“[t]he duty of the IJ to inform an alien of his eligibility for relief is mandatory, and the failure to do so constitutes a violation of the alien's due process rights.”).

In contrast, if an individual is not a lawful permanent resident and is guilty of an aggravated felony, he is subject to an expedited administrative process and is not afforded a removal hearing before an IJ and is not eligible for voluntary departure. 8 U.S.C. § 1228(b)(5).

Here, Defendant's predicate offense was determined to be an aggravated felony by an Immigration Enforcement Official. Mot. at 3. That finding subjected Defendant to expedited removal without a hearing before an IJ, and he thus was not informed of any potential for eligibility for relief from removal. Id.

An erroneous determination that his predicate offense was an aggravated felony would constitute a “defect[ ] in his underlying deportation proceeding” ( Ubaldo–Figueroa, 364 F.3d at 1048) and a due process rights violation. Accordingly, this Court turns to the pivotal question whether Defendant's underlying conviction is an aggravated felony as defined in the Immigration and Nationality Act.

The Notice of Intent alleged that Defendant was removable as an aggravated felon based on his prior conviction for a “crime of violence” under 8 U.S.C. § 1101(a)(43)(F). Mot. at 3. That statute defines an aggravated felony to include “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). Section 16 in turn defines “crime of violence” as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that...