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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 case was subsequently filed on September 2, 2014. See Docket Item No. 7.


As a predicate to a conviction under 8 U.S.C. § 1326, " the Government must establish that the defendant 'left the United States under order of exclusion, deportation, or removal, and then illegally reentered.'" United States v. Raya-Vaca, No. 13-50129, 771 F.3d 1195, at *11, 2014 WL 5802287 (9th Cir. Nov. 10, 2014) (quoting United States v. Barajas-Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011)).

Consequently, a defendant charged with a violation of § 1326 may, as a matter of due process, collaterally attack a predicate deportation order prior to trial. United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). In doing so, the defendant must show that: (1) he exhausted the administrative remedies available for seeking relief from the predicate order; (2) the deportation proceedings " improperly deprived" him of an opportunity for judicial review; and (3) the order was " fundamentally unfair." 8 U.S.C. § 1326(d). A deportation order is " fundamentally unfair" if it resulted from proceedings that violated the defendant's due process rights and caused prejudice. Raya-Vaca, 771 F.3d 1195, at *11-12. " [W]here a deportation proceeding violates an alien's due process rights, the Government may not rely on any resulting deportation order as proof of an element of a criminal offense." United States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir. 1994).


Moreno-Gomez believes the 1996 deportation order cannot be used as a predicate to this § 1326 prosecution.[2] The court agrees.

A. The Deportation Order was Fundamentally Unfair

i. Moreno-Gomez's Due Process Rights were Violated at the Deportation Hearing

Looking first at the " linchpin" issue of fundamental unfairness, Moreno-Gomez argues the 1996 proceedings violated his due process rights because the IJ mistakenly determined he was ineligible for relief from deportation and, because of that, failed to advise him of possible relief under § 212(c) of the INA. The Government disagrees, claiming that the IJ was correct in advising Moreno-Gomez that he was ineligible for any relief from deportation since, by the date of the deportation hearing, § 212(c) had been amended in such a way so as to exclude aliens like Moreno-Gomez from its purview.

To resolve this issue, the court must determine which version of § 212(c) the IJ should have applied to Moreno-Gomez. There are two possibilities. The first was in existence in 1992 when Moreno-Gomez pled guilty in state court and had been in effect since 1990. That version provided:

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 without regard to the provisions of subsection (a) of this section (other than paragraphs (3) and (9)(C)). Nothing contained in this subsection shall limit the authority of the Attorney General to exercise the discretion vested in him under section 1181(b) of this title. The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.

8 U.S.C. § 1182(c) (1995).

The second possibility came into effect before Moreno-Gomez's deportation hearing in October, 1996. The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA"), enacted on April 24, 1996, removed the phrase " has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years" and replaced it with a broad set of offenses for which convictions would preclude § 212(c) relief. See 110 Stat. 1277 (amending 8 U.S.C. § 1182(c)). Notably absent from the amended version was any temporal statement concerning punishment; the 5-year imprisonment qualification was not replaced. As a result, all aliens convicted of an aggravated felony appeared to be excluded from § 212(c) relief after AEDPA.

Here, the IJ relied on the post-AEDPA version of § 212(c) to conclude that Moreno-Gomez was ineligible for relief.[3] While such reliance is understandable given the AEDPA amendment, it was nonetheless a violation of Moreno-Gomez's right to due process in light of Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

In St. Cyr, the Supreme Court held that the repeal and revision of § 212(c) implemented pursuant to another set of legislation, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (" IIRIRA"), should not be used to deprive an alien of the possibility of § 212(c) relief when that alien plead guilty to a crime prior to IIRIRA's enactment. 533 U.S. 289, 322-23, 121 S.Ct. 2271, 150 L.Ed.2d 347. St. Cyr, a citizen of Haiti, had been admitted to the United States as a lawful permanent resident but pled guilty on March 8, 1996, to selling a controlled substance in violation of Connecticut law. Id. at 293. The conviction made St. Cyr deportable, but he qualified for discretionary relief under § 212(c) at the time. Id. However, when his deportation proceedings subsequently commenced on April 10, 1997, IIRAIRA had become effective and significantly narrowed the class of inadmissible or deportable aliens subject to a cancellation of removal. Id. at 293, 297. In addition, the Attorney General interpreted the IIRAIRA amendments as entirely terminating his discretion to grant a waiver for any alien previously convicted of an aggravated felony. Id.

As framed by the Court, its task was to determine " the impact of the [IIRAIRA] amendments on conduct that occurred before their enactment and on the availability of discretionary relief from deportation." Id. at 292. On that issue, the Court concluded there should be no impact on aliens like St. Cyr out of fairness concerns. The Court reasoned that without any clear basis to apply IIRAIRA retroactively, " it would surely be contrary to 'familiar considerations of fair notice, reasonable reliance, and settled expectations, ' to hold that IIRIRA's subsequent restrictions deprive them of any possibility of" § 212(c) relief. Id. at 323-24 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)). This was so because " as a general matter, alien defendants considering whether to enter into a plea agreement are acutely aware of the immigration consequences of their convictions" when entering into a plea agreement with the government. Id. at 322. To suddenly alter that calculus would be, as the Court described it, " an obvious and severe retroactive effect." Id. at 325.

Although it analyzes a different statute, St. Cyr applies with equal force here. When Moreno-Gomez pled guilty in 1992, he, like St. Cyr, must have been " acutely aware" of two consequences: (1) that he would become subject to deportation because his crimes were " aggravated felonies, " [4] but (2) that he would be eligible for § 212(c) relief so long as he served less than 5 years. See id. at 314-15, 322. He must have also known that, despite the 8-year sentence imposed, he could ultimately serve less than 5 years if he conducted himself properly and accumulated sufficient " good time" and " work time" credits while incarcerated. See Cal. Pen. Code § 4019. Accordingly, inasmuch as the IIRAIRA amendments could not be applied to " sweep away" St. Cyr's " settled expectations, " the AEDPA amendment removing the 5-year imprisonment qualification should not have been applied to sweep away those of Moreno-Gomez. In the end, Moreno-Gomez did serve less than 5 years and should have been advised of the potential for § 212(c) relief since he otherwise qualified for consideration under the statute.[5]

The Government attempts to distinguish this case from St. Cyr by arguing that Moreno-Gomez could not have relied on eligibility for § 212(c) relief when he plead guilty to three felony counts and was sentenced to 8 years. This argument is unpersuasive for two reasons. First, it ignores the plain language of the pre-AEDPA version of § 212(c) by focusing on time sentenced rather than time served. See Corpuz v. Holder, 697 F.3d 807, 813-14 (9th Cir. 2012). Second, it is inconsistent with the realities of criminal plea bargaining and sentencing. Criminal defendants do not agree to plead guilty without some meaningful benefit, and as the Supreme Court recognized in St. Cyr, the most meaningful benefit for defendants like Moreno-Gomez is the preservation of a possibility for deportation relief. 533 U.S. at 322-23. Here, although there was not a negotiated sentence reduced to writing, the circumstantial evidence from the state criminal proceedings and the reasonable inferences that arise therefrom make it plausible that Moreno-Gomez pled to the counts that he did in reliance on the potential for § 212(c) relief, even if he was sentenced to more than 5 years. Indeed, it is no secret that lower-level criminal defendants in California do not often serve the entirety of their sentence given the statutory potential for work and conduct credits, and it is not a stretch to believe that Moreno-Gomez knew that. The authorities cited by the Government, such as United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir. 2002), United States v. Lopez-Velasquez, 629 F.3d 894 (2010), and An Na Peng v. Holder, 673 F.3d 1248 (9th Cir. 2012), are each distinguishable and do not compel a different conclusion.

Without explicitly doing so, the Government advocates for retroactive application of the AEDPA amendment to § 212(c). But the Government has not cited to a clear indication that Congress meant AEDPA to be applied in that way. In addition, as the court has explained, the effect of the AEDPA amendment on Moreno-Gomez would be " obvious" and " severe." For these reasons, the court finds the IJ violated Moreno-Gomez's due process rights at the 1996 hearing by not advising him of eligibility for relief from deportation under § 212(c).

ii. Moreno-Gomez was Prejudiced by the Due Process Violation

In addition to identifying a due process violation, Moreno-Gomez must also establish that he suffered prejudice from the ensuing deportation. See Raya-Vaca, 771 F.3d 1195, at *23 (citing United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1085-86 (9th Cir. 1996)). This requires that he show " plausible grounds for relief" under § 212(c). Id. Assessing whether he could have done so is a two step process. At the first step, the court must identify the factors relevant to an exercise of discretion under § 212(c). Id. At the second step, the court determines whether Moreno-Gomez's unique circumstances make out a plausible claim for relief under the relevant factors. When assessing plausibility, the court is mindful of Moreno-Gomez's burden: he " need only establish 'some evidentiary basis on which relief could have been granted.'" This is something more than theoretical possibility but less than absolute certainty. Id.

Under § 212(c), " there must be a balancing of the social and humane considerations presented in an alien's favor against the adverse factors evidencing his undesirability as a permanent resident." Matter of Edwards, 20 I. & N. Dec. 191, 195 (BIA 1990). " Favorable considerations have been found to include such factors as family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred at a young age), evidence of hardship to the [alien] and his family if deportation occurs, service in this country's armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of genuine rehabilitation if a criminal record exists, and other evidence attesting to . . . good character." Id. Adverse factors include " the nature and underlying circumstances of the exclusion or deportation ground at issue, the presence of additional significant violations of this country's immigration laws, the existence of a criminal record and, if so, its nature, recency, and seriousness, and the presence of other evidence indicative of . . . bad character or undesirability as a permanent resident of this country." Id.[6]

With these factors as a guide, the court finds that Moreno-Gomez could have made a plausible claim for § 212(c) relief. Although substantial negative equities arise from Moreno-Gomez's criminal convictions, the favorable equities are even more substantial. He had moved to the United States in 1976 at a young age to join other members of his family, obtained legal status, and then lived here continuously for 15 years before his 1991 arrest. His family ties were many and included Abundiz, a citizen, and their six children, all of whom would have undeniably experienced hardship from the deportation of their husband and father. In contrast, his familial ties to Mexico by that point were minimal. Additionally, Moreno-Gomez's work history before incarceration appears significant; he had worked 60 hours per week at two jobs.

As described above, Moreno-Gomez's unique circumstances establish an evidentiary basis on which § 212(c) relief could have been granted. With that, he has shown prejudice from the due process violation. Accordingly, the court concludes that the 1996 deportation order was fundamentally unfair.

B. Moreno-Gomez Exhausted Administrative Remedies and was Deprived Judicial Review

Moreno-Gomez must also demonstrate he exhausted administrative remedies and was deprived an opportunity for judicial review in relation to the 1996 deportation order. He easily satisfies these elements, having shown that the deportation order was fundamentally unfair. United States v. Vidal-Mendoza, 705 F.3d 1012, 1015 (9th Cir. 2013) (holding that an alien need not separately demonstrate administrative exhaustion and denial of judicial review if the IJ failed to provide information about apparent eligibility for relief).

With that, Moreno-Gomez has shown all that is required for a § 1326(d) challenge to the 1996 deportation order. The Information must therefore be dismissed.


Moreno-Gomez's Motion to Dismiss the Information (Docket Item No. 18) is GRANTED. The Information filed on September 2, 2014, is DISMISSED. The trial and pretrial dates are vacated and the Clerk shall close this file.


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