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United States of America v. Hector Rogelio Casasmontejano


March 22, 2011


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge



On April 8, 2010, a federal grand jury issued an indictment charging Hector Rogelio Casas-Montejano ("Defendant") with violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). (Doc. 7). Defendant's motion to dismiss the indictment is now before the court. (Doc. 21).


Defendant was born in Mexico on July 11, 1962. On October 16, 1980, Defendant was granted an SA-1 lawful permanent resident visa. In 1989, Defendant suffered a conviction in the California Superior Court for possession of a machine gun, a felony.

In 1992, Defendant was indicted for multiple narcotics-related offenses in the United States District Court for the Central District of California. Defendant pled guilty to Possession of Ephedrine with Intent to Manufacture, Distribution of Methamphetamine, and Felon in Possession of a Firearm, pursuant to the terms of a plea agreement. Defendant was sentenced on June 14, 1995 to 51 months imprisonment on each count, to be served concurrently.

On October 27, 1997, the United States Immigration and Nationalization Service initiated removal proceedings against Defendant based on his 1995 convictions. Defendant appeared before the immigration court on December 9, 2007, January 26, 1998, February 24, 1998, and March 23, 1998. Defendant was not advised that he had any grounds for relief from removal at any of his appearances before the immigration court. Defendant was ordered removed on March 23, 1998.

From 1998 to the time of his removal, Defendant filed numerous requests seeking relief from his removal order with the Board of Immigration Appeals ("BIA"), the U.S. District Court for the Central District of California, and the Ninth Circuit, to no avail. Meanwhile, the Assistant United States Attorney responsible for negotiating Defendant's plea bargain in the 1995 conviction in the methamphetamine case, Patrick McLaughlin ("AUSA McLaughlin"), endeavored to help Defendant avoid removal. On December 9, 1999, AUSA McLaughlin sent a letter to Defendant's Deportation Officer outlining the assistance Defendant had provided to the government in various criminal cases, advising that the government was attempting to obtain an S-Visa for Defendant, and asking that Defendant be released from custody pending a final removal hearing. In 2004, AUSA McLaughlin filed a motion with the court of conviction in Defendant's 1995 methamphetamine case ("conviction court") pursuant to Federal Rule of Criminal Procedure 48 seeking to dismiss Defendant's 1992 felon in possession indictment. On August 31, 2004, the conviction court issued a three-sentence order granting McLaughlin's motion ("Rule 48 Order"). The Rule 48 Order states:

Pursuant to Rule 48 of the Federal Rules of Criminal Procedure, and by leave of court endorsed hereon, the United States Attorney for the Central District of California hereby moves to dismiss with prejudice Count Six of the indictment in the above-referenced case as to defendant HECTOR CASAS. Count Six alleges a violation of Title 18, United States Code, Sections 922(g)(1), 924(d)(1)...It is so ordered. (Doc. 22, Ex. U).

Ultimately, Defendant was removed from the United States on September 1, 2004. On March 29, 2010, United States Immigration and Custom's Enforcement ("ICE") officers discovered that Defendant had returned to the United States and was residing in Bakersfield, California. On April 8, 2010, Defendant was indicted for violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2).


Defendant seeks dismissal of his indictment for violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). Section 1326(a) provides: Subject to subsection (b), any alien who--(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this or any prior Act, shall be fined under title 18, United States Code, or imprisoned not more than 2 years or both.

8 U.S.C. § 1326(a) (2010). Section 1326(b) provides, in pertinent part:

Notwithstanding subsection (a), in the case of any alien described in such subsection...(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both;

8 U.S.C. § 1326(b)(2) (2010).

Section 1326(d) authorizes a person charged with illegal re-entry to collaterally attack a removal order the government introduces to meet its burden of proof. United States v. Arias-Ordonez , 597 F.3d 972, 975 (9th Cir. 2010) (citing 8 U.S.C. § 1326(d)). Section 1326(d) states:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) unless the alien demonstrates that--(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d).


A. Defendant's Claim of Error by the Immigration Judge

Defendant advances a collateral attack on the validity of his removal order based on an alleged error committed by the Immigration Judge at Defendant's deportation hearing; specifically, Defendant contends that the Immigration Judge erred in failing to advise Defendant of possible entitlement to relief under former section 212(c) of the Immigration and Nationality Act ("INA"). *fn1 In order to prevail on his collateral attack on his removal order, Defendant must establish that he has exhausted his administrative remedies, that his removal order improperly deprived him of an opportunity for judicial review, and that entry of the removal order was fundamentally unfair. Arias-Ordonez , 597 F.3d at 975.

Defendant cites United States v. Lopez-Velasquez , 568 F.3d 1139, 1142 (9th Cir. 2010) superceded by 2010 U.S. App. LEXIS 24889 (9th Cir. 2010) (en banc), for the proposition that the exhaustion and opportunity for judicial review requirements set forth in section 1326(d) are satisfied here because the Immigration Judge did not advise Defendant of possible entitlement to relief under former section 212(c). The government does not contest Defendant's assertion; nonetheless, it cannot be accepted. (Doc. 21, Motion to Dismiss at 3). In Lopez-Velasquez , the Ninth Circuit held: where the defendant's waiver of the right to appeal a removal order in the underlying removal proceeding was not "considered and intelligent," he satisfies the first two requirements of § 1326(d) because he was effectively deprived of the right to administrative judicial review. See United appeal

States and the Pallares-Galan opportunity for v. , 359 F.3d 1088, 1096 (9th Cir. 2004). The defendant's waiver cannot be "considered" or "intelligent" if "the record contains an inference that [the alien is] eligible for relief from deportation," but the IJ fails to "advise [him] of this possibility and give him the opportunity to develop the issue." Id. (internal quotation marks omitted); Mendoza-Lopez , 481 U.S. at 840.

568 F.3d at 1142. Lopez-Velazquez is distinguishable, as Defendant did in fact exhaust his administrative claim for 212(c) relief in his original appeal to the BIA, as well as in his numerous subsequent requests to reopen his case. ( See Doc. 22, Exs. L, N, O). More importantly, unlike the defendant in Lopez-Velazquez , Defendant had an opportunity to obtain judicial review of the BIA decisions denying him relief. (See Doc. 22, Ex. Q).

1. Judicial Review Requirement of Section 1326(b)(2)

On November 20, 1998, Defendant filed a petition for writ of habeas corpus in the the United States District Court for the Central District of California ("habeas court") seeking "a determination as to whether he is eligible to be considered for a waiver of the removal pursuant to Section 212(c) of the [INA]." (Doc. 22, Ex. Q). On April 24, 2000, Defendant, through counsel, stipulated to a remand of his case to the BIA. The stipulation provided:

Casas-Montejano and the INS hereby stipulate to a remand of the case to the [BIA] with instructions to remand to an Immigration Judge. The Immigration Judge will hear evidence and make a factual determination whether CasasMontejano specifically relied on his then-eligibility for a Section 212(c) [sic] when he entered his plea of guilty. If the Immigration Judge finds reliance, then further proceedings will be held as appropriate.


On remand, the BIA denied Defendant's claim for 212(c) relief, holding that Defendant was ineligible for waiver under former section 212(c) because he was found removable for a firearms conviction. (See Doc. 22, Ex. O) (April 8, 2004 BIA order discussing February 18, 2004 Order disposing of Defendant's claim raised in the stipulated remand). *fn2 The BIA held that "ineligibility for a 212(c) waiver moots the issue of whether [Defendant's] other criminal convictions are amendable to a section 212(c) waiver." (Order denying stay). The BIA declined to remand the action to an Immigration Judge, holding: "additional fact-finding by the Immigration Judge is not a proper use of administrative resources." (Id.)

On August 11, 2004, Defendant filed a motion in his habeas proceeding seeking an emergency stay of his removal. After granting a brief stay in order to allow time to review and rule on Defendant's motion, the habeas court entered an order denying further stay of Defendant's removal on August 25, 2004. The habeas court held: petitioner cannot demonstrate a likelihood of success on the merits as to his contention that the [decision of the BIA denying him 212(c) relief] was erroneous...An alien deportable on the basis of a firearms conviction is ineligible for relief under section 212(c)...

Casas-Montejano v. Melville , CV-98-09348, (C.D. Cal August 25, 2004).

The ultimate disposition of Defendant's habeas petition is unclear. The only two entries on the habeas court's docket entered after the August 25, 2004 order denying Defendant's motion for stay are: (1) "Traverse to the Government's Opposition re: Petition for Writ of Habeas Corpus" (Doc. 21); and (2) "Notice of Document Discrepancies and Order" ("December 2004 Notice")(Doc. 22). See Casas-Montejano v. Melville , CV-98-09348, (C.D. Cal 2004). The December 2004 Notice appears to be an order rejecting a document entitled "motion to dismiss" submitted by one of the parties. The December 2004 Notice provides "Upon submission of the attached documents, it was noted that the following discrepancies exist: case termed [sic] in 2000." The December 2004 Notice further provides "the document is NOT to be filed, but instead REJECTED and is ORDERED returned to counsel." However, there is no order on the habeas court's docket denying Defendant's habeas petition, and no order entering judgment for the government.

Notwithstanding the inchoate procedural posture of Defendant's petition before the habeas court, it is clear that the deportation proceeding at which Defendant's removal order was issued did not "improperly deprive[]" Defendant of the " opportunity for judicial review." 8 U.S.C. § 1326(d) (emphasis added). The habeas court addressed the merits of Defendant's claim for relief under former section 212(c), even after the BIA denied relief in connection with the stipulated remand. *fn3 Defendant did not request any further relief from the habeas court after Defendant's motion to stay removal was denied.

As the deportation proceeding at which Defendant's removal order was issued did not "improperly deprive[]" Defendant of the " opportunity for judicial review," he may not prevail in his collateral attack on the deportation order underlying the instant indictment. 8 U.S.C. § 1326(d)(2). Defendant is also precluded from collaterally challenging his removal order because he cannot establish that entry of his removal order was fundamentally unfair as required by section 1326(d)(3).

2. Fundamental Fairness Under Section 1326(d)(3)

An underlying removal order is "fundamentally unfair" within the meaning of section 1326(d)(3) "if a defendant's due process rights were violated by defects in the underlying deportation proceeding, and the defendant suffered prejudice as a result of the defects." United States v. Ubaldo-Figueroa , 364 F.3d 1042, 1048 (2004) (emphasis added). The Ninth Circuit has held that where the record before an immigration judge raises a reasonable possibility that the person may be eligible for relief from a removal order, failure to so advise the person violates due process. E.g., Ubaldo-Figueroa , 364 F.3d at 1050.

Defendant contends that the Immigration Judge violated his due process by failing to advise him of the possibility of relief under former section 212(c)of the Immigration and Nationality Act of 1952 ("INA"). Defendant's argument lacks merit. As both the BIA and the habeas court noted, Defendant was not entitled to section 212(c) relief at the time of his removal hearing because his 1995 felon in possession conviction rendered him ineligible. See, e.g., Cabasug v. Immigration & Naturalization Service , 847 F.2d 1321, 1326-27 (9th Cir. 1988) (section 212(c) relief from deportation order unavailable to an alien convicted of a firearms offense).

Former section 212 authorized exclusion from the United States of several classes of aliens, including those convicted of certain enumerated classes of offenses. See St. Cyr , 533 U.S. at 294. Exclusion under former section 212 was subject to a proviso granting the Attorney General broad discretion to admit excludable aliens. Id . at 295. Pursuant to section 212(c):

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General Id. (citing former version of 8 U.S.C. § 1182(c)). Although section 212(c) is only expressly applicable to exclusion proceedings, over time, decisions of the BIA and the Circuit Courts of Appeal resulted in extension of section 212(c) relief to the deportation context. See, e.g., Francis v. Immigration & Naturalization Service , 532 F.2d 268, 272 (2nd Cir. 1976) (sustaining equal protection challenge to section 212(c)) accord Matter of Silva , 16 I.& N. Dec. 26, 30 (BIA 1976)("under the provisions of section 212(c) of the Act, a waiver of the ground of inadmissibility may be granted to a permanent resident alien in a deportation proceeding regardless of whether he departs the United States following the act or acts which render him deportable[] [i]n light of the constitutional requirements of due process and equal protection of the law"). *fn4

Relief under former section 212(c) was available only if the applicable ground for deportation was substantially identical to a ground for exclusion. E.g., United States v. Moriel-Luna , 585 F.3d 1191, 1200 (9th Cir. 2009). Defendant tacitly concedes that one of the convictions underlying his deportation order--his conviction for felon in possession of a firearm--has no counterpart under former section 212(c). See Cabasug , 847 F.2d at 1326-27 (section 212(c) relief from deportation order unavailable to an alien convicted of a firearms offense because grounds for exclusion under 212 had no counterpart for such offense); see also De la Rosa v. United States AG , 579 F.3d 1327, 1330-31 (11th Cir. 2009) ("section 212(c) cannot waive a charge of deportability under section 241(a)(14) [for firearms offense] because there is no counterpart among the grounds of inadmissibility in section 212(a)"); Matter of Esposito , 21 I. & N. Dec. 1 (BIA 1995) (same). In light of Defendant's 1995 felon in possession conviction, the record before the Immigration Judge did not raise a reasonable possibility that Defendant was eligible for section 212(c) relief. *fn5

The BIA's numerous denials of Defendant's request for 212(c) relief confirm that the record before the Immigration Judge did not suggest entitlement to such relief. In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which repealed section 212(c). Defendant's deportation hearing was held on March 23, 1998, approximately three years before the Supreme Court decided INS v. St. Cyr and established that 212(c) relief remained available for aliens whose convictions were obtained through plea agreements entered into prior to passage of the IIRIRA. Citing section 304(b) of the IIRIA, which repealed section 212, the BIA denied Defendant's initial request for section 212(c) relief on October 19, 1998, stating "section 212(c) relief is not a form of relief that is available in removal proceedings." (Doc. 22, Ex. L).

Subsequent to the Supreme Court's decision in INS v. St. Cyr , the BIA again rejected Defendant's claim for relief under section 212(c) in an order issued April 8, 2004. The BIA's April 8, 2004 order held: "as a matter of law...[Defendant's] firearms conviction is ineligible for a waiver under section 212(c)." (Doc. 22, Ex. O). In light of the BIA's treatment of Defendant's requests, it is clear that at the time of his removal hearing in 1998, the record before the Immigration Judge did not suggest that Defendant had colorable claim for relief under section 212(c). To the contrary, at the time of his removal hearing, the record before the Immigration Judge established that Defendant was not entitled to section 212(c) relief as a matter of law.

Defendant argues that despite his 1995 conviction for a firearms offense, the record before the Immigration Judge contained sufficient factual information to raise the possibility of entitlement to relief under section 212(c). *fn6 Defendant argues that the letter from AUSA McLaughlin to Defendant's Deportation Officer, which was part of the record before the Immigration Judge, was sufficient to put the Immigration Judge on notice that Defendant's felon in possession conviction might be vacated. Defendant's reliance on AUSA McLaughlin's letter is misplaced. Nothing in AUSA McLaughlin's letter suggests that Defendant's firearm conviction was in doubt. AUSA McLaughlin's letter advised Defendant's Deportation Officer that Defendant had provided valuable assistance to law enforcement and indicated that the government would seek to obtain an S-Visa for Defendant, but neither of these facts support entitlement to relief under section former section 212(c). As the record before the Immigration Judge was insufficient to suggest that Defendant might be entitled to section 212(c) relief, the Immigration Judge had no duty to advise Defendant of such relief and Defendant's due process rights were not violated. E.g., United States v. Lopez-Velasquez , 2010 U.S. App. LEXIS 24889 * 13 (9th Cir. 2010) ("an IJ's duty is limited to informing an alien of a reasonable possibility that the alien is eligible for relief at the time of the hearing").

Even assuming arguendo that the record before the Immigration Judge at the time of Defendant's removal hearing suggested possible entitlement to section 212(c) relief, Defendant cannot establish he was prejudiced in any way by the Immigration Judge's failure to advise him of section 212(c). Defendant timely raised a section 212(c) claim in his initial appeal to the BIA notwithstanding the Immigration Judge's omission. Defendant cannot establish prejudice, as he cannot establish that he lost the opportunity to petition for section 212(c) relief because of the Immigration Judge's failure to advise him. See Ubaldo-Figueroa, 364 F.3d at 1051 (finding prejudice because alien could have petitioned for section 212(c) relief but lost the opportunity to do so based on Immigration Judge's failure to advise). Further, as a matter of law, Defendant did not have a plausible claim for relief because his firearms conviction rendered him ineligible for section 212(c) relief. Cabasug , 847 F.2d at 1326-27. At the earliest, Defendant became eligible for section 212(c) relief in 2004 (when his firearms indictment was dismissed), long after his removal hearing.

B. Dismissal of Defendant's Firearms Indictment

At oral argument, Defendant's counsel suggested that the present status of Defendant's 1995 felon in possession conviction somehow bears on the validity of Defendant's removal order, which in turn affects the instant indictment. Defendant takes the position that his 1995 felon in possession conviction has been vacated. In briefing, Defendant cites Nath v. Gonzalez , 467 F.3d 1185, 1188-89 (9th Cir. 2006) for the proposition that: a conviction vacated because of a procedural or substantive defect is not considered a 'conviction' for immigration purposes and cannot serve as the basis for removability.

(Doc. 36, Def's. Sup. Brief at 3).

As an initial matter, Defendant's contention that the conviction court's Rule 48 Order had the effect of vacating his conviction is questionable. "There is no precedent for applying Rule 48 to vacate a conviction after the trial and appellate proceedings have ended." Hirabayashi v. United States , 828 F.2d 591, 607 (9th Cir. 1987); United States v. Villapudua-Perada , 896 F.2d 1154, 1156 n.1 (9th Cir. 1990) ("We note that there is no precedent for granting a United States attorney's motion under Federal Rule of Criminal Procedure 48(a) to vacate a conviction after the trial"); Korematsu v. United States , 584 F. Supp. 1406, 1411 (N.D. Cal. 1984) (there is no authority to suggest that a Rule 48(a) motion may be made long after the prosecution ending in a conviction after the judgment is final, appeals have been exhausted, judgment imposed and the sentence served). A review of the conviction court's docket reveals that the conviction court never vacated any portion of the judgment of conviction entered against Defendant, *fn7 and Defendant cites no authority that indicates that dismissal of an indictment automatically invalidates a final judgment of conviction. Notably, dismissal of Defendant's indictment--nine years after his judgment of conviction became final--does not implicate the jurisdictional basis of the conviction, even if the dismissal was based on a substantive or procedural defect in the indictment . *fn8 See, e.g. , United States v. Cotton , 535 U.S. 625, 629-31 (2002) (overruling Ex parte Bain , 121 U.S. 1 (1887), which held that because indictment was improperly amended, "the jurisdiction of the offence [was] gone, and the court [had] no right to proceed any further in the progress of the case for want of an indictment"); see also Lamar v. United States, 240 U.S. 60, 65 (1916) (district court "has jurisdiction of all crimes cognizable under the authority of the United States... [and] the objection that the indictment does not charge a crime against the United States goes only to the merits of the case"); United States v. Castillo , 496 F.3d 947, 952 (9th Cir. 2007) (citing Cotton for the proposition that indictment defects are not jurisdictional). Defendant did not request an amended judgment from the conviction court, did not seek to appeal his conviction, and did not attempt bring any collateral challenge to his judgment of conviction. As there is no order of any court vacating or modifying Defendant's judgment of conviction, it remains intact.

Even assuming arugendo that the Rule 48 Order somehow had the effect of automatically vacating Defendant's firearms conviction, it would not render his removal order invalid. Absent the firearms conviction, Defendant was still subject to removal based on the balance of his 1995 convictions. ( See Doc. 22, Ex. F, Notice of Removal Proceeding). To the extent Defendant was entitled to relief under section 212(c) at the moment the Rule 48 Order issued, it was incumbent on Defendant to seek relief from either the BIA or the habeas court, which retained jurisdiction over Defendant's habeas petition pending the outcome of his removal proceeding. Defendant did not do so. ( See Doc. 22, Ex. P )(June 2010 BIA denial of Defendant's motion to reopen his case, finding that Defendant did not exercise due diligence in raising his administrative claim for relief based on the conviction court's 2004 Rule 48 order); see also Court docket in Casas-Montejano v. Melville , CV-98-09348 (reflecting no further action by Defendant in his habeas proceeding after August 26, 2004).

Defendant cannot establish that any action or decision of the Immigration Judge or the BIA denied him the opportunity for judicial review of his claim that, after the Rule 48 Order, Defendant was entitled to relief under section 212(c). Defendant did not seek relief from the habeas court based on the Rule 48 Order, and did not bring the Order to the attention of the BIA until 2010. Thus, even accepting Defendant's tenuous position that his 1995 felon in possession conviction was vacated by the Rule 48 Order in 2004, thereby entitling him to section 212(c) relief before the date of his removal, Defendant's collateral attack on his removal order does not satisfy the requirements of section 1326(d) and cannot be sustained. 8 U.S.C. § 1326(d). Defendant, and individual engaged in serious criminal wrongdoing throughout his residence in the United States, must now fact the consequences of his choices and actions.


For the reasons stated, Defendant's motion to dismiss is DENIED.



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