United States v. Rojas-Osorio

• Decision Date: 05 April 2019
• Docket Number: Case No. 17-CR-00507-LHK
• Citation: 381 F.Supp.3d 1216
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Jorge Arturo ROJAS-OSORIO, Defendant.

381 F.Supp.3d 1216

UNITED STATES of America, Plaintiff,

v.Jorge Arturo ROJAS-OSORIO, Defendant.

Case No. 17-CR-00507-LHK

United States District Court, N.D. California, San Jose Division.

Signed April 5, 2019

Brian Eduardo Cabrera, United States Attorney, Criminal Division, San Jose, CA, for Plaintiff.

Rhona D. Taylor, Federal Public Defender Northern District of California, San Jose, CA, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR RECONSIDERATION; VACATING THE JANUARY 16, 2019 ORDER AND JUDGMENT; REOPENING THE CASE; AND GRANTING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT WITH PREJUDICE

Re: Dkt. Nos. 32, 49, 50, 52

LUCY H. KOH, United States District Judge

On January 16, 2019, the Court granted Defendant Jorge Arturo Rojas-Osorio's ("Defendant") motion to dismiss Defendant's 8 U.S.C. § 1326 indictment. Specifically, the Court, relying on Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), found that the immigration judge ("IJ") lacked jurisdiction over Defendant's underlying 2005 removal proceedings because Defendant's Notice to Appear for the removal hearing lacked date and time information. See ECF No. 49 ("1/16/19 Order"). On January 28, 2019, the Ninth Circuit issued its ruling in Karingithi v. Whitaker , 913 F.3d 1158 (9th Cir. 2019), in which the Ninth Circuit held that an IJ had jurisdiction over removal proceedings even though the Notice to Appear lacked removal hearing date and time information.

In light of this authority, the government filed a motion for leave to file a motion for reconsideration on January 31, 2019, ECF No. 51, which the Court granted, ECF No. 53. Before the Court is the government's motion for reconsideration. ECF No. 52 ("Mot. for Reconsid."). Having considered the submissions of the parties, the relevant law, and the record in this case, the Court GRANTS in part and DENIES in part the government's motion for reconsideration, ECF No. 54; VACATES the January 16, 2019 Order and the Judgment, ECF Nos. 49 & 50; REOPENS the case; and GRANTS the Defendant's motion to dismiss the indictment with prejudice on the second ground raised by Defendant in the motion to dismiss, ECF No. 32.

I. BACKGROUND

A. Factual Background

The Court repeats the relevant facts from the Court's January 16, 2019 Order dismissing Defendant's indictment. 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 a Washington first degree theft conviction ( RCW 9a.56.030(1)(a) ), which the Notice to Appear alleged was a crime involving moral turpitude. See MTD, Exh. A ("Notice to Appear") at 1. The Notice to Appear provided no specific date or time for Defendant's removal hearing, but instead stated only:

YOU ARE ORDERED to appear before an immigration judge of the United States Department of Justice at: Seattle, Washington on a date to be calendared by the EOIR Office. Notice will be mailed to the address provided by the respondent.

[O]n __________ at __________ to show why you should not be removed from the United States based on the charge(s) set forth above.

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 Defendant's motion to dismiss the indictment, the government attached 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 the removal hearing was commenced, the Defendant was returned to the custody of King County Sheriff's Department to answer a warrant. Id.

There is a factual dispute between the parties as to what happened next. According to Deportation Officer Courtney Norris, 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 the sentence imposed was only 90 days, not seven years. See ECF No. 41 ("MTD Reply") at 11. Indeed, the Judgment of the Washington Superior Court specifically shows that the sentence imposed was 90 days, not seven years. See Norris Decl., Exh. A at 7 ("Judgment and Sentence of the Washington Superior Court") (showing that the sentence imposed was 90 days).

On April 29, 2005, ICE notified the Executive Office of Immigration Review ("EOIR") in Seattle that Defendant was in ICE custody. 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 removal 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: "[t]he kite is typically a piece of 8 x 11 paper that includes a space for the inmate's name, alien number, housing location and question or concern. Generally, inmates ask about hearing dates, property or anticipate removal dates. Kites are communicated in the language that the inmate can understand." 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 ECF No. 32 ("MTD"), Exh. B ("Removal Hearing"). The audio indicates that 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 motion to dismiss the indictment, Defendant asserted, inter alia, that Judge Kandler did not meaningfully advise Defendant of his right to seek voluntary departure. See MTD at 18–19. The conversation as to the availability of voluntary departure during the removal proceeding occurred as follows. After finding Defendant removable and designating Mexico as the country for removal, Judge Kandler asked counsel for the government whether there was any 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 MTD, 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 MTD, 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. MTD, 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. MTD, Exh. F ("2011 Reinstatement"). The parties do not explain or cite to any materials that explain what happened in the intervening five years.

B. Procedural History

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 decision in Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), gave Defendant a new basis to collaterally attack Defendant's prior deportation, an element of Defendant's...