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United States v. Moreno-Gomez

United States District Court, N.D. California, San Jose Division

December 1, 2014


For Jose Moreno-Gomez, Defendant: Cynthia Chin Young Lie, LEAD ATTORNEY, Federal Public Defender, San Jose, CA.

For USA, Plaintiff: Maia Taussig Perez, LEAD ATTORNEY, U.S. Attorney's Office, Northern District of California, San Jose, CA, United States.


EDWARD J. DAVILA, United States District Judge.

Re: Dkt. No. 18

Defendant Jose Moreno-Gomez (" Moreno-Gomez") moves to dismiss an Information charging him with one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326. See Docket Item No. 18. Plaintiff United States of America (the " Government") opposes the motion. See Docket Item No. 24. Having carefully considered the pleadings and the arguments of counsel presented at the hearing on November 24, 2014, Defendant's motion will be granted for the reasons explained below.


Moreno-Gomez entered the United States from Mexico in approximately 1976 to join his parents. See Decl. of Jose Moreno-Gomez (" Moreno-Gomez Decl."), Docket Item No. 20, at ¶ 2. He was 12 years old at the time. Id. In 1983, Moreno-Gomez became a legal permanent resident and filed a Petition for Naturalization in 1986. Id. at ¶ 6; see also Decl. of Cynthia C. Lie (" Lie Decl."), Docket Item No. 22, at Ex. C. He never completed the naturalization process, however. See Moreno-Gomez Decl., at ¶ 6.

Moreno-Gomez has 10 siblings, one of whom was born in the United States. Id. His other siblings entered the United States at or before the time he entered and have resided continuously in the United States since their entry. Id. According to Moreno-Gomez, all members of his immediate family have been legal residents since the 1990s. Id. Members of his extended family, including aunts, uncles and cousins, have also resided legally in the United States since the 1990s, either as citizens or legal permanent residents. Id. at ¶ ¶ 3, 4.

After entering the United States, Moreno-Gomez settled in Watsonville and began working in the agricultural industry. See Lie Decl., at Ex. C; see also Moreno-Gomez Decl., at ¶ 5; see also Decl. of Dolores Abundiz, Docket Item No. 21, at ¶ 3. He also worked as a cook for his brothers' food-service businesses during his off-hours. See Moreno-Gomez Decl., at ¶ 5; see also Abundiz Decl., at ¶ 3. Between these two jobs, Moreno-Gomez often worked 60 hours per week. See Moreno-Gomez Decl., at ¶ 5. He married Dolores Abundiz, a United States citizen, in 1982. See Abundiz Decl., at ¶ 1. They have six children, all of whom were born in the United States between 1982 and 1996. Id. at ¶ 2.

In or about November, 1991, a criminal complaint was filed in Monterey County Municipal Court charging Moreno-Gomez and his brother, Federico Moreno-Gomez, with multiple violations of California Health and Safety Code § § 11351 (possession or purchase of cocaine for sale) and 11352 (transportation of cocaine for sale). See Lie Decl., at Ex. D. Moreno-Gomez was also charged with a firearm enhancement pursuant to California Penal Code § 12022(c). Id. He was held to answer the charges after a preliminary examination and an Information was filed in Monterey County Superior Court on January 3, 1992.[1] Id. He ultimately plead guilty to three § 11352 violations and was sentenced on March 12, 1992, to three concurrent four-year terms with one consecutive four-year term for the § 12022(c) enhancement. Id.

Due to his state conviction, deportation proceedings were initiated against Moreno-Gomez by an Order to Show Cause (" OSC") dated August 4, 1993. Id. at Ex. B. He was alleged to have committed a controlled substance offense and an aggravated felony, and was charged as deportable under § § 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the Immigration and Nationality Act (" INA"). Id. He appeared for a hearing before an Immigration Judge (" IJ") on October 31, 1996, while still incarcerated at Calipatria State Prison. Id. at Ex. A. The IJ sustained the charges alleged in the OSC, found that Moreno-Gomez was ineligible for relief from deportation, and ordered Moreno-Gomez deported to Mexico. Id. at Exs. A, E. Moreno-Gomez waived his right to appeal from the deportation order. Id. He was released from state custody on November 19, 1996, after serving four years and ten months and deported that same day. Id. at Ex. F.

In 2000, the 1996 deportation order was reinstated after Moreno-Gomez was found to have re-entered the United States without authorization. Id. at Ex. G; see also Decl. of Courtney Norris (" Norris Decl."), Docket Item No. 25, at ¶ 2. As a result, he was deported for a second time on or about June 29, 2000. See Norris Decl., at ¶ 2.

On or about July 11, 2014, Moreno-Gomez was found in Santa Cruz where he came to the attention of United States immigration authorities following an arrest for driving under the influence and failing to stop his vehicle at a crosswalk. Id. The Information underlying this ...

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