United States District Court, N.D. California, San Jose Division
ORDER DENYING MOTION TO DISMISS INDICTMENT [Re: ECF
LABSON FREEMAN UNITED STATES DISTRICT JUDGE
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.
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
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.
Felony Pen. C. § 244 Conviction
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.
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
2005 Misdemeanor Driving Conviction
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.
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.
2006 Immigration Encounter
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.
2008 Domestic Violence Arrest and Deportation
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
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.
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
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.
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.
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.
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.
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.
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 ...