United States District Court, S.D. California
Filed July 17, 2014
[Copyrighted Material Omitted]
For Miguel Maldonado, Defendant: Morgan D. Stewart, LEAD ATTORNEY, Federal Defenders of San Diego, Inc., San Diego, CA.
For USA, Plaintiff: David P. Finn, LEAD ATTORNEY, U.S. Attorneys Office Southern District of California, San Diego, CA.
JUDGMENT AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT
M. James Lorenz, United States District Court Judge.
Defendant is charged in a one-count indictment with attempted entry after deportation, in violation of 8 U.S.C. § 1326(a) and (b). Defendant has been physically removed from the United States pursuant to reinstatement of a previous order granting voluntary departure, and ordering deportation in the alternative. Defendant has filed a Motion to Dismiss the Indictment on the basis that there is no valid order of removal upon which the government may base its prosecution. (Doc. 15.)
Defendant contends: 1) that the reinstatement of an order granting voluntary departure cannot serve as a valid removal order within the meaning of 8 U.S.C.
§ 1326, and that as a result the 2012 reinstatement order referenced in the indictment is invalid; 2) that the Immigration Judge (" IJ" ) never advised him during the 1986 removal proceedings of suspension from deportation or registry, thereby violating his due process rights and invalidating the deportation order; and 3) that the INS violated Mr. Maldonado's due process rights by recommending the denial of his initial naturalization petition, by failing to timely adjudicate his subsequent petitions, and by failing to respond to his requests for documents. (Def.'s Mot. p. 17.)
Mr. Miguel Maldonado came to the United States in 1970 with his future wife and child on a visitor's visa from Peru that was originally set to expire on August 24, 1974. ( See Doc. 15, Ex. A.) He married his wife in 1971, and the two had two children in the United States. ( See Doc. 15, Ex. B (marriage certificate); Ex. C, D (birth certificates).) Mr. Maldonado overstayed his visa after receiving a six-month extension. ( See Doc. 15, Ex. GG.) According to a 1989 Immigration Appellate order, he received two convictions for shoplifting in 1972. ( See Doc. 15, Ex. FF, p. 2.)
Mr. Maldonado voluntarily enlisted in the United States Army in 1976 during the period of Vietnam hostilities. See 8 C.F.R. § 329.2 (defining the period of Vietnam hostilities under U.S.C. § 1440 as between February 28, 1961 and October 15, 1978). ( See Doc. 15, Ex. E.) According to the 1986 order of the IJ, he was able to enlist by purchasing a false birth certificate stating he was a natural born citizen from Puerto Rico. ( See Doc. 15, Ex. BB, p. 8.) He served for three years and received an honorable discharge in 1979. ( See Doc. 15, Ex. F.)
Mr. Maldonado applied to become a United States citizen in 1979. ( See Doc. 15, Ex. G.) In 1979 he took and passed his naturalization exam, and he swore allegiance to the United States. ( See id. ) Mr. Maldonado contends that the examiner recommended denial on the grounds that Mr. Maldonado was not a lawful permanent resident and that he had improperly enlisted in the army. ( See Def.'s Mot. p. 4:12-18.)
Mr. Maldonado asserts that in 1980 he withdrew his original petition for naturalization because he " was led to believe that the designated examiner had made a final and non-reviewable decision on his application for citizenship . . . ." (Def.'s Mot. p. 4:12-18 (citing Doc. 15, Ex. H, a 1983 letter from Mr. Maldonado's then-immigration attorney to the Immigration and Naturalization Service (" INS" ) that would seem to provide no support for this statement).)
In 1981, Mr. Maldonado was arrested for assault and battery, and in 1982, he seems to have been arrested for possession of cocaine; charges were dismissed in both cases. (Doc. 15, Ex. BB, p. 7.) Records pertaining to the 1981 charges seem to have been expunged. (Doc. 15, Ex. JJ.)
In 1982, Mr. Maldonado returned to Peru for about a month and reentered the country using a fraudulently obtained
United States passport. (Doc. 15, Ex. BB, p. 4; Ex. FF, p. 1-2.) He obtained this passport by using the aforementioned false birth certificate, and on March 14, 1983, he was convicted of violating 18 U.S.C. § 1542 for false statement in the application and use of a United States passport. (Doc. 15, Ex. FF, p. 1-2.) He received a suspended sentence and a fine of $750. ( Id. )
Mr. Maldonado renewed his petition for naturalization on November 10, 1983. ( See Doc. 15, Ex. H.) He concurrently filed a new application for naturalization. (Doc. 15, Ex. I.)
At some point prior to 1984, deportation proceedings were initiated against Mr. Maldonado. ( See Doc. 15, Ex. J, p. 2; Ex. A.) On October 20, 1983, the INS District Director issued an order to show cause why Mr. Maldonado should not be deported. ( See Doc. 15, Ex. M.)
Hearing nothing from the INS as to his previous petitions for naturalization, Mr. Maldonado filed a third petition for naturalization in December of 1984. (Doc. 15, Ex. J.) In February of 1986, Mr. Maldonado received a Notice to Appear for his naturalization interview. Defendant contends that the interview was continued, but that the INS failed to follow up with him. (Defs.' Mot. p. 4:23-5:4.) Mr. Maldonado then filed a fourth petition in United States District Court for the Eastern District of Pennsylvania in March of 1986. (Doc. 15, Ex. K.)
In that same March of 1986, an IJ found Mr. Maldonado " deportable as charged" in deportation proceedings. (Doc. 15, Ex. BB, p. 4.) The IJ did not advise Mr. Maldonado of his right to apply for suspension of deportation. ( See Doc. 15, Ex. Z.) The IJ granted Mr. Maldonado voluntary departure on or before May 14, 1986, or any such extension that the INS District Director might grant thereafter. (Doc. 15, Ex. BB, p. 9.) The IJ also ordered Mr. Maldonado deported in the alternative if he did not comply with the terms of voluntary departure. ( Id. ) Mr. Maldonado appealed the IJ's 1986 order. (Doc. 15, Ex. CC.) The appeal was dismissed on January 13, 1989, and the voluntary departure was extended until 30 days past the order dismissing the appeal. (Doc. 15, Ex. DD.) Despite being ordered to voluntarily depart prior to February 13, 1989, Mr. Maldonado remained in Maryland until July 23, 1991. ( See id. ; Doc. 20-2, p. 2-13.)
Mr. Maldonado filed an application for permanent residence, which INS received on September 1, 1987. (Doc. 15, Ex. L.) INS rejected this application on May 3, 1988, citing its October, 1983 order to show cause and concluding that Mr. Maldonado should have filed a motion to reopen the case in immigration court in Washington D.C. instead. (Doc. 15, Ex. M.)
In response to a Freedom of Information Act request, INS informed Mr. Maldonado that it had no records of his petitions for naturalization on August 10, 1988. (Doc. 15, Ex. O.) INS sent another similar response to Mr. Maldonado's attorney on January 9, 1989. (Doc. 15, Ex. R.) In July of 1989, Mr. Maldonado's attorney filed another petition for naturalization on his behalf. (Doc. 15, Ex. Q.)
On February 21, 1992, Mr. Maldonado was convicted of one count of conspiracy to distribute cocaine and possession of cocaine with intent to distribute in violation of 21 U.S.C. § § 841(a)(1) and 846, and seven counts of unlawful distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). (Doc. 20-2, p. 2; see United States v. Maldonado, 989 F.2d 496 (4th Cir. 1993).) He received a sentence of fourteen years, of which he served eleven. (Doc. ...