United States v. Valdivias-Soto
| Decision Date | 09 November 2020 |
| Docket Number | Case No. 18-cr-00505-BLF-1 |
| Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California |
| Parties | USA, Plaintiff, v. ROSENDO VALDIVIAS-SOTO, Defendant. |
[Re: ECF 38]
Defendant Rosendo Valdivias-Soto, a Spanish-speaking Mexican national, is charged in a single-count indictment for violating 8 U.S.C. § 1326(a), which prohibits unlawfully reentering the United States after deportation. See Indictment, ECF 2. Mr. Valdivias moves to dismiss the indictment on the grounds that his prior removal order was fundamentally unfair by violating his due process rights and therefore cannot serve as the predicate for this unlawful reentry prosecution. See Mot., ECF 38. The Government opposes Mr. Valdivias's motion. See Opp'n, ECF 41. The Court has considered the parties' briefing, evidentiary record, oral arguments presented at the September 29, 2020 hearing, and the applicable law. For the reasons that follow, the Court finds that Mr. Valdivias has successfully collaterally attacked his 2012 removal order under 8 U.S.C. § 1326(d) and GRANTS his motion to dismiss the indictment.
Mr. Valdivias, the sixth of ten children, grew up on a cattle ranch in the rural community of Tumbiscatio de Ruiz, Michoacan, Mexico, an eight-hour trip away from the nearest town or medical clinic. Ex. B, Report of Dr. Shelley Peery ("Peery Report") 31, ECF 38-2. His childhood home did not have running water or electricity. Id. His community did not have a schoolteacher at the time he was school-aged, so he never learned to read or write. Id. He started working on his parents' ranch when he was approximately six years old, caring for animals, planting corn, building fences, and making tortillas. Id. 32.
Around this time, he was sexually abused by an aunt who stayed with the family for approximately three months after the murder of her husband, the brother of Mr. Valdivias's mother. Peery Report 32. He did not tell anyone at the time due to shame and fear his aunt would be mad at him. Id. Mr. Valdivias's sister reported to Dr. Peery that her brother had worms around the time he was five-to-seven years old. Id. Medical records from 2003 indicate Mr. Valdivias has cysticercosis calcifications in his brain, which result from tapeworm larvae ingested as eggs from contaminated food, water, or surfaces contaminated with feces. Ex. A, Medical Records 11, ECF 38-2.
Mr. Valdivias suffered a traumatic brain injury when he was around twelve or thirteen years old. Peery Report 32. He was struck by a fast-moving car while crossing the street. Id. He was unconscious for at least a week, and he was hospitalized for several weeks. Id. When he regained consciousness, he could not recognize his family members for approximately one week. Id. He could not work for several months and reported that he did not feel "normal" for four-to-five months after the accident. Id.
When he was approximately fifteen years old, his father died, making his family more reliant on his labor. Peery report 33. He also traveled ten-to-fourteen hours on horseback to work on his aunt's ranch as well. Id. 32. It was in his aunt's village that he met his partner, Angelica Vargas, when they were in their early teens. Id. at 33. They have now been together for twenty-three years and have lived in California together since 2000. Ex. F, Decl. of Angelica Vargas-Soto ¶ 2, ECF 38-2. They have seven children together. Id. At least three of their children are United States citizens. Id. ¶ 7. Their oldest son, now seventeen years old, has Type 1 diabetes, a condition that requires attentive care. Id. ¶¶ 11-12. Twenty-six of their adult relatives are either United States citizens or lawful permanent residents. Id. ¶ 11.
Mr. Valdivias has worked consistently to provide for his family since his arrival to the United States. Decl. of Angelica Vargas-Soto ¶ 8. He has worked in construction, roofing, landscaping, restaurants, delivery, and he currently works at a machine shop in San Jose. Id.
In 2002, Mr. Valdivias was attacked by an unknown assailant at night while walking near an East Palo Alto convenience store. Medicals Records 11; Ex. D., East Palo Alto Police Department Felony Report 59 ("East Palo Alto Police Report"), 38-2. He was hit in the head multiple times with a chain. Medical Records 11. He suffered skull fractures and lacerations that were treated with stitches and staples. Id. 11-12. He managed to run away after he saw a knife. Medical Records 18.
Mr. Valdivias was taken to the hospital by his brother-in-law, Arnoldo Vargas, and another adult relative the day after the attack. Ex. G, Decl. of Arnoldo Vargas ¶ 2, ECF 38-2; Medical Records 14, 18. Medical personnel in the emergency room submitted a "Suspected Violent Injury Report" to law enforcement. Medical Records 18. The East Palo Alto police department sent an officer to interview Mr. Valdivias at the hospital, and either his brother-in-law or other relative translated for him at his bedside. Id. His brother-in-law, Mr. Vargas, recalls being present during the police interview. Decl. of Arnoldo Vargas ¶ 3. Mr. Vargas recalls that Mr. Valdivias told the police officer that he did not know his attacker and thought that the attacker was either trying to rob him or had him confused with someone else. Decl. of Arnoldo Vargas ¶ 4. The assailant was never found. Mot. 3. The East Palo Alto police report notes that Mr. Valdivias was the victim of assault with a deadly weapon, a violation of Cal. Pen. Code § 245(a)(1) at a convenience store on December 29, 2002. East Palo Alto Police Report 59. The report notes that the police department had photographs of Mr. Valdivias's injuries as evidence. Id. 60. Those photographs have subsequently been destroyed. Id. 61.
In 2012, after Mr. Valdivias was deported to Mexico, he suffered another traumatic brain injury as a result of an attack and spent five days in the hospital. Ex. H, Letter from Physician and Translation 89-90, ECF 38-2; Peery Report 34. In 2015, back in the United States, Mr.Valdivias's family home was burglarized, and he again cooperated with law enforcement in the investigation. Ex. I, San Jose Police Department Narrative 91, ECF 38-2.
Mr. Valdivias was evaluated by a neuropsychologist in May 2020. See Peery Report. He was diagnosed with Major Neurocognitive Disorder due to Traumatic Brain Injury, and the doctor determined that he has previously suffered from Post-Traumatic Stress Disorder ("PTSD"). Peery Report 43. The doctor reported that Mr. Valdivias's cognitive deficits have developed subsequent to his 2002 traumatic brain injury. Id. 43-44. The doctor noted that these deficits were "superimposed upon an already vulnerable brain that incurred a severe traumatic brain injury around the age of twelve." Id. at 43. Mr. Valdivias Id.
Mr. Valdivias has several misdemeanor convictions and one felony conviction that would be a misdemeanor today. His misdemeanor convictions are as follows: DUI with injury, 2002; hit and run causing property damage, 2004; DUI, 2007; and two convictions for driving with a suspended license, 2007 and 2009. Ex. J Decl. of Lara Vinnard ¶¶ 3-7, ECF 38-3. Mr. Valdivias was voluntarily returned to Mexico in 2009. Ex. K 2, ECF 38-4. Mr. Valdivias's felony conviction came in 2011, for conspiring to cultivate marijuana, in violation of Cal. Pen. Code § 182. Ex. L, Judgment 4, ECF 38-4. This is a misdemeanor in California today. See Cal. Health & Saf. Code § 11358(c).
According to the criminal complaint, Mr. Valdivias and Cleofas Vargas-Soto, his brother-in-law, drove a vehicle to a marijuana farm in Mendocino National Forest, and the car contained food, a handgun, and marijuana seeds. Ex M., Compl. 6, ECF 38-4. According to the Forest Service report, Mr. Valdivias was the passenger in the vehicle. Ex. N, USDA Forest Service Supplemental Incident Report 9, ECF 38-4. It appears that Mr. Valdivias was only present in the car because he was very familiar with the area. Id. 10. He plead no contest and was sentenced to a term of sixteen months incarceration on June 28, 2011. Judgment 4.
In 2016, California voters passed Proposition 64, which rendered Mr. Valdivias's offense a misdemeanor. Mot. 6; Cal. Health & Saf. Code § 11358(c). In 2018, the California legislature passed Health & Saf. Code § 11361.9, requiring that the State identify sua sponte all past marijuana convictions that qualify for reductions, expungements, and recall and re-designate those cases accordingly. Mot. 6.
While Mr. Valdivias was serving his sentence for conspiring to cultivate marijuana, the Government served him with a Notice to Appear in removal proceedings. Ex. Q, Notice to Appear 31, ECF 38-4. On January 31, 2012, while in a room at the prison with other incarcerated persons, Mr. Valdivias appeared via teleconference in front of immigration Judge Jack W. Staton. Mot. 7; Ex. U, Tr. of Immigration Proceedings ("Removal Hearing Transcript") 1, ECF 38-4.1 On his I-263B Record of Sworn Statement form, there is a handwritten note that Mr. Valdivias cannot read or write. Ex. S, I-263B 37, ECF 38-4. A Spanish interpreter was present for the hearing. See Removal Hearing Transcript. Mr. Valdivias was not represented by counsel. Mot. 8; See Removal Hearing Transcript.
At the beginning of the hearing, the immigration judge advised the respondents about their right to counsel in removal proceedings. "At this and every hearing, gentlemen, you can have an attorney, but the government will not pay for your attorney." Removal Hearing Transcript 1-2....
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