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United States v. Renderos

October 28, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSE OSCAR RENDEROS, DEFENDANT.



The opinion of the court was delivered by: William Q. Hayes United States District Judge

ORDER

HAYES, Judge

The matters before the Court are following motions filed by the Defendant Jose Oscar Renderos: 1) the motion to dismiss a charge of Count 1 of the insufficient allegations, vagueness and duplicity (ECF No. 10); 2) the motion to suppress statements (ECF No. 13); and 3) the motion to dismiss Count 1 of the indictment based on invalid removal (ECF No. 20).

BACKGROUND FACTS

On January 11, 1985, Defendant entered the United States by walking through the hills near Tijuana, Mexico.

On November 17, 1987, Defendant filed a Request for Asylum in the United States. The Request for Asylum bears a stamp indicating "EMPLOYMENT AUTHORIZED" and does not indicate any action granting or denying the application. ECF No. 20-2, Exhibit B.

Sometime prior to November 20, 1990, Defendant was granted temporary resident status as a special agricultural worker pursuant to section 210 of the Immigration and Nationality Act . ECF No. 30-1 at 2.

On November 20, 1990, Defendant was notified by the Immigration and Naturalization Service that his claim of eligibility as a seasonal agricultural worker "can not be considered credible" and that he had "30 days from the date of the notice to submit evidence to overcome the above grounds of ineligibility." Id. On May 21, 1991, Defendant was notified that his "status as a temporary resident under Section 210(a)(2)(B) of the Act [was ordered] terminated pursuant to Section 210(b)(3)(B) of the Act. Defendant was notified that he was entitled to appeal the decision "within 30 days of this notice... If a timely appeal is not submitted, this decision is final and your Form I-688, Temporary Resident Card, shall be deemed void and must be surrendered without delay to an immigration officer." ECF No. 30-3.

On June 24, 1991, Defendant submitted an appeal from the Notice of Termination. ECF No. 30-4.

On June 20, 1995, Defendant was notified by the Immigration and Naturalization Service that his "Form I-90 Application by Lawful Permanent Resident for New Alien Registration Receipt Card" was denied on the grounds that he was "not eligible for an Alien Registration Receipt Card because you were never lawfully admitted as a permanent resident and you are not an alien whose status was automatically converted to permanent resident." ECF No. 22, Exhibit A.

On December 17, 1996, Defendant was notified that his appeal from the Notice of Termination sent to him on May 21, 1991 was dismissed on the grounds that it was untimely filed and that "[t]his decision constitutes a final notice of ineligibility." ECF No. 30-5 at 3.

In 2000, Defendant filed an application for suspension of deportation pursuant to the Nicaraguan Adjustment and Central American Relief Act (NACARA). This application was never approved.

Defendant's criminal history includes the following convictions: 1) on March 5, 2001, Defendant was convicted in the Superior Court of San Joaquin County, California of taking a vehicle without consent in violation of California Vehicle Code Section 10851(a) and burglary in violation of California Penal Code section 459; 2) on June 27, 2007, Defendant was convicted of driving under the influence in Riverside County, California; 3) on January 24, 2008, Defendant was convicted of receipt of stolen property, in violation of California Penal Code Section 469(a) and taking a vehicle without consent in violation of California Vehicle Code Section 10851(a), in Los Angeles County, California; and 4) on October 20, 2008, Defendant was convicted of taking a vehicle without consent in violation of California Vehicle Code Section 10851(a) and grand theft in violation of California Penal Code section 487(a)in Orange County, California.

On April 24, 2008, the Immigration and Naturalization Service issued a Notice to Appear to the Defendant stating that the Immigration and Naturalization Service has determined that he is inadmissible to the United States under the Immigration and Naturalization Act and subject to removal in that: "You are an alien present in the United States who was not admitted or paroled." ECF No. 20-2, Ex. C-1. In the Notice to Appear the Immigration Service "allege[d] that: 1) You are not a citizen or national of the United States.

2) You are a native of EL SALVADOR and a citizen of EL SALVADOR; 3) You entered the United States at or near SAN YSIDRO, CA on or about January 11, 1985; and 4) You were not then admitted or paroled after inspection by an Immigration Officer." Id.

After the completion of his state sentence, Defendant was transferred to immigration custody.

On July 29, 2009, Defendant appeared before an Immigration Judge for deportation proceedings. At the hearing, the Immigration Judge noted that there had been a prior appearance of counsel and the Immigration Judge informed the Defendant that he would continue the hearing for the appearance of counsel if he wished. The Immigration Judge advised the Defendant of the seriousness of the proceedings, and confirmed that the Defendant wanted to proceed without an attorney. Defendant stated if he could get bond, he would continue and contest removal but if not, he would represent himself and be deported. The Immigration Judge informed the Defendant that he did not know if the defendant was eligible for bond and confirmed that the defendant wanted to conduct the hearing without an attorney and represent ...


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