United States v. Ramirez-Gonzalez

          ORDER DENYING MOTION TO DISMISS INDICTMENT [Re: ECF 28]

          BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE

         Defendant Victor Ramirez-Gonzalez is charged with one count of violating 8 U.S.C. § 1326, which prohibits illegally re-entering the United States after being deported. See Superseding Indictment, ECF 22. Ramirez-Gonzalez argues that his prior deportation was unlawful and that the United States cannot establish the deportation element of the Section 1326 offense. See Mot. at 1, ECF 28. He thus moves to dismiss the superseding indictment. See Id. Because Ramirez-Gonzalez has not shown that he was prejudiced by due process violations in his 2008 deportation proceedings, his motion is DENIED.

         I. BACKGROUND

         Ramirez-Gonzalez is a native and citizen of Mexico. See Record of Deportable/Inadmissible Alien, Feb. 13, 2007, Def.'s Ex. D, ECF 28-1. He came to the United States in April of 2000 or 2002^[1] and was deported on Nov. 5, 2008. See Warrant of Removal/Deportation, Def.'s Ex. K, ECF 28-1. While living in the United States, he had several encounters with the law. The relevant portions of his criminal and immigration history are summarized here.

         A. Felony Pen. C. § 244 Conviction

         On Mar. 21, 2005, Ramirez-Gonzalez was charged in Monterey County Superior Court with four felony counts: two counts of violating Cal. Penal C. § 244 ("Pen. C. § 244"), assault with caustic chemicals; one count of violating Pen. C. § 422, threats of violence; and one count of Pen. C. § 273.5(a), corporal injury to spouse/cohabitant/parent of child. See Information, Def.'s Ex. A at 1-3, ECF 28-1. Count one of the Information alleged that

On or about MARCH 3, 2004 the crime of ASSAULT WITH CAUSTIC CHEMICALS, in violation of Section 244 of the Penal Code, a FELONY, was committed by VICTOR GONZALEZ, who at the time and place last aforesaid, did willfully, unlawfully, and maliciously place and throw, and cause to be placed and thrown upon the person of [ECC], vitriol, corrosive acid and caustic chemical with the intent to injure the flesh and disfigure the body of said victim.

Id. at 1. According to the probation officer's report, Ramirez-Gonzalez had thrown hydrochloric acid on his girlfriend, who was trying to leave him, and her sister. See Probation Officer's Report, Pl.'s Ex. C at 2-3, ECF 31-1.

         Ramirez-Gonzalez ultimately pled to the first count, assault with caustic chemical, see Minute Order, May 5, 2005, Def.'s Ex. B, ECF 28-1, and the other counts were dismissed. See Minute Order, June 2, 2005, Pl.'s Ex. E, ECF 31-1. Although the Superior Court's minute order states that Ramirez-Gonzalez stipulated to a factual basis for the plea, the factual basis is not provided. See Minute Order, May 5, 2005, Def.'s Ex. B. The Superior Court sentenced Ramirez-Gonzalez to three years' probation and 365 days in jail, which was suspended while he was on probation. See Minute Order, June 2, 2005, Pl.'s Ex. E.

         B. 2005 Misdemeanor Driving Conviction

         On Apr. 15, 2005, while his felony case was proceeding, Ramirez-Gonzalez also was convicted of the misdemeanor offense of driving without a license, and was sentenced to ten days' confinement. See Compl. at 2, ECF 1; Cal. Veh. Code § 12500.

         The United States argues that Ramirez-Gonzalez "apparently sustained another conviction" for driving without a license on June 29, 2005, but in the absence of a judgment or other record of this conviction, the Court will not consider this conviction. Opp. at 2, ECF 31.

         C. 2006 Immigration Encounter

         In December 2006, Ramirez-Gonzalez came to the attention of ICE due to his Pen. C. § 244 conviction. See Record of Deportable/Inadmissible Alien, Feb. 13, 2007, Def.'s Ex. D at 1, ECF 28-1. At that time ICE described his Pen. C. § 244 conviction as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F). See Id. at 2. ICE's Record of Deportable/Inadmissible Alien states that Ramirez-Gonzalez was scheduled to be arrested at the Monterey County Probation office on Feb. 14, 2007, but nothing appears to have come of this. See id.

         D. 2008 Domestic Violence Arrest and Deportation

         Just over a year later, the Seaside Police Department arrested Ramirez-Gonzalez in connection with a domestic violence incident. See Incident/Arrest Report, Feb. 10, 2008, Pl.'s Ex. F at 8, ECF 31-1. According to the police report, Ramirez-Gonzalez and his wife had argued and she had thrown a glass cup at him. See Id. She missed and the cup shattered on the ground. See Id. Ramirez-Gonzalez then slashed his wife to the bone with the broken glass: the cut was about four inches long and one inch wide, and it "was deep and the Victim's bone was showing." Id. at 4. He also slashed her finger, which had a smaller, bleeding cut. See Id. This arrest triggered ICE's attention, and from this point, Ramirez-Gonzalez had both criminal and immigration proceedings pending.

         On Feb. 12, 2008, an ICE officer interviewed Ramirez-Gonzalez, and Ramirez-Gonzalez stated that he did not want to fight the immigration proceedings. See Record of Deportable/Inadmissible Alien, Feb. 11-12, 2008, Def.'s Ex. E at 1, ECF 28-1. Ramirez-Gonzalez states that he does not remember this interview. See Ramirez-Gonzalez Decl. ¶ 2, Pl.'s Ex. I.

         In September 2008, Ramirez-Gonzalez was charged with multiple felony counts, including violating Cal. Penal C. § 273.5(a), inflicting corporal injury on spouse/cohabitant/parent of child, and Cal. Penal C. § 245(a)(1), assault with a deadly weapon or with force likely to produce great bodily injury. See Information, Pl.'s Ex. G, ECF 31-1. A petition to revoke his probation for the Pen. C. § 244 conviction was filed, but it was later withdrawn and probation was reinstated. See Minute Order, Nov. 3, 2008, Def.'s Ex. F, ECF 28-1. The charges were ultimately dismissed on Nov. 3, 2008. See Minute Order, Nov. 3, 2008, Pl.'s Ex. H, ECF 31-2.

         On Nov. 5, 2008, ICE served Ramirez-Gonzalez a Notice of Intent to Issue a Final Administrative Removal Order. See Notice of Intent to Issue a Final Administrative Removal Order ("Notice of Intent"), Def.'s Ex. H at 1, ECF 28-1. The Notice of Intent stated that Ramirez-Gonzalez was "deportable under . . . 8 U.S.C. 1227(a)(2)(A)(iii) . . . because [he had] been convicted of an aggravated felony as defined in . . . 8 U.S.C. 1101(a)(43)(F)." Id. The aggravated felony conviction referred to his Pen. C. § 244 conviction. See Id. at 3. The Notice of Intent also stated that Ramirez-Gonzalez could be represented by counsel and had to respond to the charges in the Notice of Intent within 10 calendar days of service. See Id. at 1. It further stated that he could request an extension of time, rebut the charges against him, request an opportunity to review the government's evidence, admit deportability, designate a county for removal, or request withholding of removal under 8 U.S.C § 1231(b)(3) or the Convention Against Torture. See Id. Finally, the Notice of Intent indicated that he had the right to remain in the United States for 14 calendar days in order to file a petition for review with the appropriate U.S. Circuit Court of Appeals. See id.

         ICE agent Joshua Arambulo served the Notice of Intent on Ramirez-Gonzalez at 3:30 p.m. on Nov. 5, 2008. See Id. at 2. Arambulo indicated that he "explained and/or served this Notice of Intent" to Ramirez-Gonzalez in Spanish. Id.

         Five minutes later, at 3:35 p.m., Ramirez-Gonzalez signed the Notice of Intent and checked boxes indicating that he admitted the allegations and charges in the Notice of Intent, acknowledged that he was "not eligible for any form of relief from removal, " "waive[d] [his] right to rebut and contest" the charges against him, and "[did] not wish to request withholding or deferral of removal." Id. He also indicated that although he understood that he had the right to remain in the United States for 14 calendar days in order to apply for judicial review, he "[did] not wish this opportunity" and "waive[d] this right." Id. A Final Administrative Removal Order was issued the same day, finding that Ramirez-Gonzalez had "a final conviction for an aggravated felony as defined in . . . 8 U.S.C. 1101(a)(43)(F), " was "ineligible for any relief from removal that the Security of Homeland Security, may grant in an exercise of discretion, " and was "deportable as an alien convicted of an aggravated felony pursuant to . . . 8 U.S.C. 1227(a0(2)(A)(iii)." Final Administrative Removal Order, Def.'s Ex. J, ECF 28-1. A Warrant of Removal/Deportation was issued and Ramirez-Gonzalez was deported. See Warrant of Removal/Deportation at 1-2, Def.'s Ex. K, ECF 28-1.

         Ramirez-Gonzalez now declares that Arambulo neither gave him copies of his immigration documents nor explained them to him. See Ramirez-Gonzalez Decl. ¶¶ 5, 8. Arambulo showed Ramirez-Gonzalez only the second page of the Notice of Intent and showed him where to sign it- but did not translate or explain it to him in Spanish. See Id. at ¶ 7. Ramirez-Gonzalez does not read or speak English, however, and understands only "a little bit" of English. See Id. Anything complicated "has to be explained to [him] in Spanish." Id. at ¶ 4. Ramirez-Gonzalez states that the immigration officer that spoke to him was not fluent in Spanish, and spoke to him in a mix of English and Spanish. See id.

         Ramirez-Gonzalez further states that the ICE agent failed to inform him that a judge could tell him about avoiding deportation, and did not explain voluntary departure to him. See Id. at ¶ 6. Ramirez-Gonzalez states that no one informed him that he was eligible for voluntary departure or any other relief from deportation. See Id. According to Ramirez-Gonzalez, Arambulo told him that if he wanted to see a judge, then he would be transported to Arizona and get "mas [sic] carcel, " or more time in jail. Id. at ¶ 5. Ramirez-Gonzalez also was not informed that he had a right to a lawyer or that he could contest the immigration charges. See Id. at ¶ 8. He states that if he had been properly informed of his rights, then he would have refused to sign the Notice of Intent, hired an immigration lawyer, and requested to see a judge and ask for voluntary departure. See Id. at ¶¶ 6, 8-9.

         E. Current Indictment

         Ramirez-Gonzalez reentered the United States sometime after being deported, and is now charged with one count of violating 8 U.S.C. §§ 1326(a), (b) by illegally reentering this country without the permission of the Attorney General or the Secretary of Homeland Security. See Superseding Indictment at 2-3, ECF 22. He moves to dismiss this charge on the ground that his prior ...