United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the motion to dismiss the indictment pursuant to 8 U.S.C. § 1326(d) filed by Defendant Viktor Nikolayevich Pavlovich. (ECF No. 20)
On April 10, 2002, Defendant was admitted to the United States as a refugee under section 208 of the Immigration and Nationality Act.
On January 4, 2010, a Notice To Appear was issued to Defendant alleging that he was removeable based upon two crime of moral turpitude, specifically, a September 21, 2009 conviction in the District Court of King County, State of Washington for the offense of Theft in the third degree, in violation of RCW 9A.56.050(2); and a November 12, 2008 conviction in the Superior Court of King County, State of Washington for the offense of Residential Burglary, in violation of RCW 9A.52.025. (ECF No. 20-2 at 3).
On May 10, 2010, Defendant entered a plea of guilty to Robbery in the first degree in violation of RCW 9A56.200(I) (A)(II) and 9A.56.190. In the plea agreement, Defendant admitted:
On or about May 2, 2009 in King County Washington. I along with Oleg V. Sadakha, Slavok M. Potapchuk and Maksim I. Mayba unlawfully and with intent to commit theft or personal property of another by use of force or threatened use of force stole money and guns from Ian Plunkett & Mikael Woo. On that occassion (sic) I along with the aforementioned individuals were armed when we stole money &guns from Mr. Woo & Mr. Plunkett.
(ECF No. 21-2 at 11).
On June 10, 2010, Judgment was entered in the Robbery case and Defendant was sentenced to 57 months imprisonment. Id. at 21. The immigration proceedings were administratively closed after Defendant was transferred out of immigration custody.
On September 10, 2012, Defendant was released from state prison and again placed into immigration custody. The Department of Homeland Security immediately requested that Defendant's immigration proceedings be placed on the master calendar before an immigration judge.
On October 3, 2012, the Department of Homeland Security filed "Additional Charges of Inadmissibility/Deportability" alleging "[y]ou were, on June 2, 2010, convicted in the Superior Court of the State of Washington for the County of King in Seattle, WA for the offense of Robbery in the First Degree, in violation of RCW 9A.56.200(1)(a)(ii) and 9A.56.190 for which a prison sentence of fifty seven (57) months was imposed." (ECF No. 20-2 at 6).
On October 23, 2012, an Immigration Judge denied Defendant's request for bond on the grounds that she had no jurisdiction to set bond under 8 U.S.C. § 1226(c), which required detention of aliens deportable on the grounds of an aggravated felony.
On November 1, 2012, a hearing was held before the Immigration Judge. Defendant through counsel, admitted that he has been convicted of Robbery in the First degree as charged in the "Additional Charges of Inadmissibility/Deportability." Defendant through counsel, admitted that the offense was "an aggravated felony crime of violence." (ECF No. 32-1 at 3). Defendant through counsel, applied for several forms of relief from deportation, including: 1) asylum, 2) withholding of removal, 3) deferral of removal under the Convention Against Torture, and 4) adjustment of status from Refugee to Legal Permanent Resident. (ECF No. 21-3 at 2-3).
On April 2, 2013, Defendant, through counsel, submitted a motion to withdraw his applications for relief from deportation and to expedite his next scheduled hearing so that he could be deported as soon as possible. At the time that he made this request, Defendant had been in immigration custody for 186 days and his immigration hearing was scheduled for May 6, 2013.
On April 15, 2013, Defendant appeared before an Immigration Judge. The Immigration Judge found that Defendant had knowingly withdrawn his pending applications for relief from removal and Defendant was ordered removed from the United States to Ukraine.
On April 16, 2013, the Court of Appeals for the Ninth Circuit issued an opinion in Rodriguez v. Robbins, 715 F.3d 127 (9th Cir. 2013) holding that the prolonged detention of an alien without an individualized determination of dangerousness or flight risk would be "constitutionally doubtful." Id. at 1137. The Court of Appeals stated: "[w]e conclude that, to avoid constitutional concerns, 1126(c)'s mandatory language must be construed to contain an implicit ...