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United States v. Avalos-Perez

United States District Court, S.D. California

April 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE LUIS AVALOS-PEREZ, Defendant.

          ORDER DENYING MOTION TO DISMISS § 1326 PROSECUTION [DKT. NO. 16]

          Hon. Gonzalo P. Curiel United States District Judge.

         Defendant Jose Luis Avalos-Perez moves to dismiss the indictment against him on the grounds that his two prior removals were invalid and cannot support a prosecution under 8 U.S.C. § 1326. Dkt. No. 16. Upon review of the moving papers and the applicable law, and for the reasons discussed below, the Court DENIES the motion.

         BACKGROUND

         On December 6, 2016, a federal grand jury in this district returned an indictment charging Defendant Avalos-Perez with Attempted Reentry of Removed Alien, in violation of 8 U.S.C. §§ 1326(a) and (b). Dkt. No. 11.

         Defendant, alias Saul Flores-Cosio, was born in Michoacan, Mexico on April 14, 1963. Def.'s Ex. G, Dkt. No. 16-2; Def.'s Ex. A, Dkt. No. 16-2. Although Avalos-Perez “grew up” in Mexico he came to the United States as a teenager and lived for a time in Escondido, California. Def.'s Ex. A, Dkt. No. 16-2. He later moved to Fresno, California, then back to Escondido, and later on to Stockton, California. Id. For about five years, Avalos-Perez worked in agriculture, farming avocados, grapes, and citrus. Id.

         While in the United States, Defendant amassed a criminal record. He was convicted of misdemeanor illegal entry under 8 U.S.C. § 1325 on February 7, 1986, December 19, 1986, March 2, 1989, and September 19, 1989. Govt.'s Resp., Dkt. No. 21 at 3. He was also convicted of misdemeanor possession of a controlled substance, in violation of Cal. Health & Safety Code § 11350, on December 12, 1988; obstruction of a police officer on May 5, 1995; and evasion of a police officer, a felony, on June 6, 1995 in violation of Cal. Veh. Code § 2800.2.[1] Id.

         1. Stipulated Removal under 8 U.S.C. § 1229a(d)

         On March 8, 2007, the Immigration and Naturalization Service (INS) issued a Notice to Appear (NTA) for removal proceedings under Section 240 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1229a. Def.'s Ex. B, Dkt. No. 16-2. The NTA alleged that Avalos-Perez entered the United States at or near Tecate, California on or about March 4, 2007 without being admitted or paroled after inspection by an Immigration Officer. Id. The NTA charged that he was subject to removal under Section 212(a)(6)(A)(i) of the INA, 8 U.S.C. § 1182(a)(6)(A)(i) (noncitizens present without being admitted or paroled are inadmissible).

         That same day, Avalos-Perez entered into a Stipulated Request for Removal Order and Waiver of Hearing with the United States Department of Justice, Executive Office for Immigration Review. Def.'s Ex. C, Dkt. No. 16-2. In the Request, Avalos-Perez waived his right to have a hearing before an Immigration Judge (“IJ”), admitted all of the factual allegations contained within the NTA, and waived his right to appeal the written order of removal. Id. This Stipulated Request was followed by a Government's Concurrence to Stipulated Request For Removal Order and Waiver of Hearing, Def.'s Ex. D, Dkt. No. 16-2, and a Decision and Order of the Immigration Judge that ultimately approved the Stipulated Request, Def.'s Ex. E, Dkt. No. 16-2. In the Decision and Order, the Immigration Judge ordered that Avalos-Perez be removed from the United States to Mexico pursuant to Section 240(d) of the INA, 8 U.S.C. § 1229a.[2]

         2. Expedited Removal under 8 U.S.C. § 1225(b)(1)

         Just under a week later, on March 14, 2007, Avalos-Perez received a Notice and Order of Expedited Removal (NER) in a Section 235(b)(1) removal, 8 U.S.C. § 1225(b)(1). Def.'s Ex. F, Dkt. No. 16-2. The NER charged that Defendant was inadmissible under Section 212(a)(7)(A)(i)(I) of the INA (visa issued without compliance) and further stated that Defendant was:

an immigrant not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Immigration and Nationality Act; to wit: You have entered the United States illegally with the intent of residing in Los Angeles, California for the purpose of employment.

Id. During the processing, Avalos-Perez completed a Record of Sworn Statement in Proceedings (“Sworn Statement”). Def.'s Ex. G, Dkt. No. 16-2. In it, he admitted that he did not have any legal authority to enter or work in the United States, that he had never applied for legal status, and that he had no family residing in the United States. Id. He added that he had entered the U.S. illegally in order to work and that he had last entered the United States “three days ago, through the mountains.”[3] As part of the expedited removal proceeding, Avalos-Perez also completed, and signed, a Jurat for Record of Sworn Statement. Def.'s Ex. H, Dkt. No. 16-2. The Jurat stated that Avalos-Perez left Mexico “to go to Los Angeles to get money from his family and work” and that he had no fear or concern that he would be harmed if returned to his home country. Id.

         After processing, the INS ordered Defendant removed from the United States pursuant to Section 235(b)(1) of the INA. Def.'s Ex. F, Dkt. No. 16-2. The Order became final on March 14, 2007. Id.

         DISCUSSION

         Avalos-Perez challenges his indictment under 8 U.S.C. § 1326 by contesting the validity of his March 8, 2007 and March 14, 2007 removals, both of which could serve as the predicate offense in a § 1326 prosecution. Defendant argues that because both his March 8 and March 14 removals were invalid, neither can serve as a basis for his § 1326 prosecution.[4] Def.'s Mot. Dismiss (“DMD”), Dkt. No. 16 at 1. As discussed below, however, Avalos-Perez cannot avoid the § 1326 prosecution because the March 14 removal is valid.

         I. Collateral Attack under § 1326(d)

         In Mendoza-Lopez the Supreme Court held that the only way to attack the validity of a deportation or removal order relied upon in a § 1326 prosecution is to argue that the issuance of the order violates the noncitizen's due process rights. See U.S. v. Mendoza-Lopez, 481 U.S. 828, 837 (1987). This right to challenge the validity of a prior deportation removal order is codified at 8 U.S.C. § 1326(d). See U.S. v. Gonzalez-Flores, 804 F.3d 920, 926 (9th Cir. 2015).

         Under § 1326(d), a noncitizen must satisfy three requirements in order to successfully challenge a removal order. The individual must show (1) that he exhausted administrative remedies that may have been available to seek relief against the order; (2) that the removal proceedings improperly deprived him of the opportunity for judicial review; and (3) that the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d); see also Gonzalez-Flores, 804 F.3d at 926.

         II. Administrative Exhaustion & Deprivation of Judicial Review

         Defendant has satisfied the first two prongs of § 1326(d), requiring a defendant to demonstrate that he exhausted available administrative remedies and that the removal proceeding deprived him of an opportunity for judicial review. See 8 U.S.C. § 1326(d)(1), (2).[5]

         Expedited removals of inadmissible arriving noncitizens, like Avalos-Perez, do not provide for administrative review except in the instance of a noncitizen claiming asylum or claiming to be a legal permanent resident. 8 U.S.C. § 1225(b)(1)(C); see also U.S. v. Barajas-Alvarado, 655 F.3d 1077, 1081 (9th Cir. 2011). As Avalos-Perez was neither at the time of the expedited removal order, the Court concludes that there were no administrative remedies available for Avalos-Perez to exhaust.

         As to a meaningful opportunity for judicial review, that too is foreclosed by expedited removal proceedings brought under 8 U.S.C. § 1225. “Congress expressly deprived courts of jurisdiction to hear a direct appeal from an expedited removal order.” Barajas-Alvarado, 655 F.3d at 1081; 8 U.S.C. § 1252 (“Judicial review of orders of removal”); see also 8 U.S.C. § 1225(b) (“If an immigration officer determines that an alien . . . who is arriving in the United States . . . is inadmissible under section 212(a)(6)(C) or 212(a)(7), the officer shall order the alien removed from the United States without further hearing or review . . . .”). Accordingly, Barajas-Alvarado specifically concluded that “the INA precludes meaningful judicial review of the validity of the proceedings that result in an expedited removal order [under 8 U.S.C. § 1225].” As such, this Court likewise concludes that the nature of Avalos-Perez's removal proceeding deprived him of any meaningful judicial review.

         III. Fundamental Unfairness

         In order to establish that a predicate removal was “fundamentally unfair, ” a noncitizen must demonstrate that the proceeding (1) violated the noncitizen's due process rights and (2) that the noncitizen suffered prejudice as a result. Barajas-Alvarado, 655 F.3d at 1085. To establish prejudice, a noncitizen must demonstrate that grounds for relief were plausibly available at the time of removal.

         Defendant alleges that the March 14 expedited removal was invalid because he was administratively processed without a qualified interpreter, without being advised of available relief, and without the opportunity to review his sworn statement. DMD, Dkt. No. 16 at 10. Avalos-Perez further asserts that the was prejudiced by these due process violations because he plausibly would have been eligible to withdraw his application for admission, thus avoiding any final removal order. Id. at 16.

         Notwithstanding any due process violations, however, this Court concludes that Defendant has failed to demonstrate that he was plausibly eligible for relief from removal. Accordingly, Defendant did not suffer any prejudice as a result of the alleged due process violations and, thus, he ...


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