United States v. Rosas-Ramirez

• Decision Date: 26 November 2019
• Docket Number: Case No. 18-CR-00053-LHK-1
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Antonio ROSAS-RAMIREZ, Defendant.

424 F.Supp.3d 758

UNITED STATES of America, Plaintiff,

v.Antonio ROSAS-RAMIREZ, Defendant.

Case No. 18-CR-00053-LHK-1

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

Signed November 26, 2019

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

Tamara A. Crepet, Federal Public Defender, San Jose, CA, for Defendant.

ORDER GRANTING MOTION TO DISMISS INDICTMENT AS TO 2014 REMOVAL

Re: Dkt. No. 59

LUCY H. KOH, United States District Judge

Before the Court is Defendant Antonio Rosas-Ramirez's ("Defendant") motion to dismiss the indictment for illegal reentry following deportation in violation of 8 U.S.C. § 1326. ECF No. 59 ("Mot."). Having considered the filings of the parties, the relevant law, and the record in this case, the Court GRANTS Defendant's motion to dismiss the Indictment as to the 2014 removal.

I. BACKGROUND

A. Factual Background

In 1996, Defendant was convicted of one count of a violation of Cal. Health & Safety Code § 11352. ECF No. 29-1 at Ex. F. Defendant was sentenced to three years of imprisonment. Id. On June 24, 1998, an immigration officer served Defendant with a "Notice of Intent to Issue a Final Administrative Removal Order" ("Notice of Intent"). Id. at Ex. A. The Notice of Intent stated that Defendant was a citizen of Mexico and that Defendant had entered the United States on or about January 1994 without inspection. Id. The Notice of Intent further stated that Defendant had been convicted in the California Superior Court for the County of Santa Cruz for violating Cal. Health & Safety Code § 11352. Id. The Notice of Intent indicated that Defendant was deportable without appearing before an Immigration Judge because Defendant had been convicted of an aggravated felony "as defined in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43)." Id.

The Notice of Intent contained a section entitled "I Wish to Contest," which contained four checkbox options for grounds on which Defendant could have contested Defendant's deportability. Id. Defendant did not check any of the boxes to complete this section. Id. By contrast, Defendant signed and completed a section of the Notice of Intent entitled "I Do Not Wish to Contest." Id. Defendant signed the "I Do Not Wish to Contest" section on June 24, 1998 at 13:00, witnessed by the immigration officer who served the Notice of Intent. Id. On June 26, 1998, the immigration officer served Defendant with a "Final Administrative Removal Order," dated June 25, 1998. Id. at Ex. B. On or about July 15, 1998, Defendant was deported to Mexico. Id. at Ex. C.

Defendant eventually returned to the United States. It is unclear from the record when Defendant was apprehended in the United States. However, on January 23, 2002, a "Notice of Intent/Decision to Reinstate Prior Order" was issued that required Defendant's removal from the United States based on the prior 1998 removal order. Id. at Ex. D. Thus, Defendant was removed from the United States without a hearing before an immigration judge. On or about February 25, 2002, Defendant was once again deported to Mexico. ECF No. 1.

Eventually, at an unspecified time, Defendant returned to the United States once more. On February 12, 2014, United States Immigration and Customs Enforcement ("ICE") agents apprehended Defendant in Redwood City, California, and took Defendant into custody. ECF No. 60-1 ¶ 3. On February 13, 2014, the United States Department of Homeland Security prepared a Form I-862, Notice to Appear ("NTA"). ECF No. 59-1. The NTA alleged that Defendant would be placed in removal proceedings under 8 U.S.C. § 1229. Id. The NTA did not identify the address of the Immigration Court at which the NTA would be filed. Id. Instead, the space on the NTA that specified the "Complete Address of Immigration Court, including Room Number, if any," stated only "to be set." Id. Defendant was detained by ICE through the pendency of the removal proceedings. ECF No. 60 at 2.

On February 18, 2014, the Immigration Court sent Defendant a "Notice of Hearing in Removal Proceedings." ECF No. 59-2. The Notice of Hearing in Removal Proceedings indicated that Defendant's hearing would occur on February 27, 2014, at 9:30 a.m. before the Immigration Court in San Francisco. Id. Defendant appeared at the Immigration Court in San Francisco on February 27, 2014. Mot. at 2. Defendant was assisted by a translator, and Defendant was not represented by counsel. Id. At the conclusion of the hearing, an immigration judge ordered that Defendant be removed to Mexico. ECF No. 59-3. On or about March 1, 2014, Defendant was again deported to Mexico. ECF No. 1.

On or about April 24, 2014, Defendant was apprehended in the United States once again. Id.

B. Procedural History

On February 8, 2018, a grand jury in the Northern District of California returned an indictment ("Indictment") that charged Defendant with one count of a violation of 8 U.S.C. § 1326, Illegal Reentry Following Deportation. ECF No. 1 ("Indictment"). Specifically, the grand jury charged as follows: "On or about April 24, 2014, in Santa Clara County in the Northern District of California, the [D]efendant, ... an alien, previously having been excluded, deported and removed from the United States on or about July 15, 1998, February 25, 2002, and March 1, 2014, 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 [D]efendant for admission into the United States." Id.

Defendant filed a motion to dismiss the Indictment as to Defendant's 2014 removal on December 5, 2019. ECF No. 13. The government opposed the motion on January 16, 2019. ECF No. 19. Defendant filed a reply on January 23, 2019. ECF No. 20. On February 4, 2019, the Court denied Defendant's motion to dismiss the Indictment as to Defendant's 2014 removal. ECF No. 23.

On February 27, 2019, Defendant filed a motion to dismiss the Indictment as to Defendant's 1998 administrative removal and the 2002 reinstatement. ECF No. 29. The government opposed the motion on March 28, 2019, ECF No. 34, and Defendant replied on April 9, 2019, ECF No. 36. On April 19, 2019, the Court ordered supplemental briefing from both parties. ECF No. 38. Defendant filed a supplemental brief on May 8, 2019, ECF No. 43, and the government filed a supplemental brief on May 9, 2019, ECF No. 45. On June 26, 2019, the Court granted Defendant's motion to dismiss the Indictment as to Defendant's 1998 administrative removal and the 2002 reinstatement. ECF No. 52. The Court explained, however, that Defendant's 2014 removal served as a valid predicate removal, and that therefore "Defendant's 2014 removal still independently supports the indictment." Id. at 18. The 2014 removal is the sole remaining removal that serves as a predicate for the single count violation of 8 U.S.C. § 1326, Illegal Reentry Following Deportation, charged in the Indictment.

On October 2, 2019, Defendant filed the instant motion to dismiss the Indictment as to the Defendant's 2014 removal. Mot. On October 23, 2019, the government opposed the motion, ECF No. 60 ("Opp'n"), and on November 6, 2019, Defendant replied, ECF No. 61 ("Reply").

II. LEGAL STANDARD

A. Motion to Dismiss Indictment

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 States v. Boren , 278 F.3d 911, 914 (9th Cir. 2002). "In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, the district court is bound by the four corners of the indictment." Id. A motion to dismiss an indictment can be determined before trial "if it involves questions of law rather than fact." United States v. Shortt Accountancy Corp. , 785 F.2d 1448, 1452 (9th Cir.), cert. denied , 478 U.S. 1007, 106 S.Ct. 3301, 92 L.Ed.2d 715 (1986).

B. Collateral Attack on a Deportation

"For a defendant to be convicted of illegal reentry under 8 U.S.C. § 1326, the Government must establish that the defendant left the United States under order of exclusion, deportation, or removal, and then illegally reentered." United States v. Raya-Vaca , 771 F.3d 1195, 1201 (9th Cir. 2014) (internal quotation marks and citation omitted). "A defendant charged under § 1326 has a due process right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction." Id. (internal quotation marks and citation omitted).

To demonstrate that a prior deportation cannot serve as the basis for an indictment for illegal reentry, 8 U.S.C. § 1326(d) requires that a defendant "demonstrate that (1) he exhausted the administrative remedies available for seeking relief from the predicate removal order; (2) the deportation proceedings ‘improperly deprived [him] of the opportunity for judicial review’; and (3) the removal order was ‘fundamentally unfair.’ " Id. (quoting 8 U.S.C. § 1326(d) ) (brackets in original). "To satisfy the third prong—that the order was fundamentally unfair—the defendant bears the burden of establishing both that the deportation proceeding violated his due process rights and that the violation caused prejudice." Id. (internal quotation marks, citation, and brackets omitted).

III. DISCUSSION

In Defendant's motion to dismiss the Indictment as to Defendant's 2014 removal, Defendant asserts that the United States Department of Homeland Security's failure to file a proper Form I-862, Notice to Appear ("NTA"), with the Immigration Court deprived the Immigration Court of jurisdiction to remove Defendant. Defendant asserts that this failure provides the grounds for Defendant to collaterally attack the 2014 removal under 8 U.S.C. § 1326(d).

For the reasons below, the Court agrees with Defendan...