United States District Court, S.D. California
ORDER GRANTING MOTION TO DISMISS INDICTMENT [Dkt.
Gonzalo P. Curiel United States District Judge
Jose Ricardo Cazares-Rodriguez (Cazares-Rodriguez) moves to
dismiss the Government's § 1326 prosecution against
him by collaterally attacking the removal order that serves
as the predicate offense. Defendant alleges that the sole
removal against him is invalid because he (1) received
insufficient notice of the charges against him and because
(2) he was not removable as charged. Defendant argues that
both of these violations prejudiced him because both tainted
the validity of the removal order itself and, thus, if
proven, would demonstrate that the removal order was
“fundamentally unfair” within the meaning of
22, 2009, the United States Department of Homeland Security
Immigration Customs Enforcement (“ICE”) served
Cazares-Rodriguez with a Notice of Intent to Issue Final
Administrative Removal Order (“Notice of
Intent”). Def.'s Ex. A, Dkt. No. 12-2 at 2. The
Notice of Intent informed Defendant that he had been placed
into removal proceedings under Section 238(b) of the
Immigration and Nationality Act (“INA” or
“the Act”) (expedited removal of aggravated
felons who are not permanent residents) based upon his
January 13, 2009 conviction for Assault With the Intent to
Commit Rape, a felony, in violation of Section 220(a) of the
California Penal Code. Id. That conviction, the
Notice of Intent charged, qualified as an aggravated felony
under 8 U.S.C. § 1101(a)(43)(U) of the INA
(“attempt or conspiracy to commit an offense described
in this paragraph”) and made Defendant removable under
Section 237(a)(2)(A)(iii), 8 U.S.C. §
1227(a)(2)(A)(iii), of the INA (listing aggravated felons as
class of deportable noncitizens). Id.
response to the Notice of Intent, Defendant completed a
Record of Sworn Statement in Affidavit Form, i.e., an
administrative affidavit. Gov.'s Ex. 7, Dkt. No. 14-7 at
2. In it, Defendant swore that he was a citizen of Mexico and
that he had been convicted of the California crime charged.
Id. at 3. A Final Administrative Removal Order
(FARO) was issued under Section 238(b) of the Act on that
same day. Def.'s Ex. B, Dkt. No. 12-2 at 4.
Section 220(a) Conviction
220(a) of the California Penal Code criminalizes assault with
intent to commit certain enumerated criminal offenses.
(a)(1) Except as provided in subdivision (b) [addressing
commission of burglary], any person who assaults another with
intent to commit mayhem, rape, sodomy, oral copulation, or
any violation of Section 264.1 [Rape or penetration;
acting in concert by force or violence], 288 [Lewd
or lascivious acts], or 289 [Forcible acts of sexual
penetration] shall be punished by imprisonment in the state
prison for two, four, or six years.
Cal. Pen. Code. § 220(a).
November 18, 2008, the People of the State of California
issued a felony complaint against Defendant for (1) Assault
With Intent to Commit a Felony in violation of Cal. Pen. Code
§ 220(a); (2) Lewd Act Upon a Child, a felony, in
violation of § 288(c)(1) of the code; (3) Child
Molesting, a misdemeanor, in violation of § 647.6(a)(1)
of the penal code; and (4) Assault in violation of
243.4(e)(1), a misdemeanor. Gov.'s Ex. 2, Dkt. No. 14-2
Defendant entered into a plea agreement with the People of
the State of California on December 9, 2008. Gov.'s Ex.
4, Dkt. No. 14-4. Pursuant to that Agreement, Defendant
entered a plea of no contest to Count 1, a violation of
§ 220(a). Id.
20, 2009, Defendant appeared before a judge in the Superior
Court of California, County of Los Angeles and entered a plea
of nolo contendere to Count 1: violation of § 220(a).
Gov.'s Ex. 3, Dkt. No. 14-3. The Court approved the plea
after finding that there was a factual basis for the plea as
evidenced by defense counsel's stipulation:
“Counsel stipulate [sic] to a factual basis based on
the information contained in the arrest report.”
Id. at 3. The remaining counts against Defendant
were dismissed pursuant to the plea agreement. Id.
Abstract of Judgment
Abstract of Judgment, filed September 14, 2002, states that
Defendant was convicted of Assault With Intent to Commit a
Felony in violation of § 220(a). Def.'s Ex. D, Dkt.
No. 12-2 at 9.
August 11, 2008, a member of the Pomona Police Department
filed an incident/crime report concerning an incident between
Defendant and his common-law niece, aged 14, as recounted by
Defendant's niece. Gov.'s Ex. 1, Dkt. No. 14-1.
report states that the Defendant was driving the victim home
after the victim went to visit her sister's new baby.
Id. At some point the Defendant pulled into a
mechanic shop on the way home after he told the victim that
his car was overheating and that it needed to cool down.
Id. The Defendant then began to complement the
victim on her good looks and tried to hold her hand, but the
victim resisted. Id. Thereafter, Defendant reached
over to the victim with his right hand and “caressed
her left cheek area . . . and attempted to turn her face
towards him.” Id. Defendant than gave the
victim “a kiss on the lips” and the victim turned
thereafter, Defendant told the victim to “take her
pants off, ” but the victim refused. Id.
Defendant told the victim to take off her pants again and
advised her that “If you don't take your pants off,
I will take them off for you.” Id. When she
refused, he reached over to her and attempted to unbutton her
jeans. Id. At some time during the exchange,
Defendant had also placed his hands on the victim's legs
and upper thigh area and groped her breasts. Id. He
had also mentioned to her that “he only needed ten
minutes to have sex with her.” Id.
victim later tried to get out of the vehicle, but Defendant
forced her back into the passenger seat. Id.
Defendant then “moved one of his hands to the front of
her throat” and pushed her backwards. Id.
Thereafter, the victim told Defendant that she would have a
beer. Id. While the Defendant reached to grab a beer
from the back seat, the victim reached for the passenger
door, opened it, and ran to local store, where she was able
to call her mother. Id.
Collateral attack under § 1326(d)
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).
§ 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 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.
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. U.S. v.
Barajas-Alvarado, 655 F.3d 1077, 1085 (9th Cir. 2011).
Exhaustion & Judicial Review, §§ 1326(d)(1)
argues that he has satisfied §§ 1326(d)(1) &
(2) because his waiver of his right to administrative and
judicial appeal was not knowing or intelligent.
noncitizen “cannot collaterally attack an underlying
deportation order if he validly waived the right to appeal
that order.” U.S. v. Arrieta, 224 F.3d 1076,
1079 (9th Cir. 2000); see also U.S. v.
Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004).
“In order for the waiver to be valid, however, it must
be both ‘considered and intelligent.'”
U.S. v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir.
2001). A waiver of the right to appeal that was not
“considered or intelligent” deprives a noncitizen
of his right to appeal and thereby deprives the noncitizen of
a meaningful opportunity for judicial review within the
meaning of § 1326(d)(2). See U.S. v. Leon-Paz,
340 F.3d 1003, 1005 (9th Cir. 2003). The same is true of a
waiver of the right to an administrative appeal. See
Muro-Inclan, 249 F.3d at 1183; see also U.S. v.
Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004).
a waiver to be valid, the government must establish by
‘clear and convincing evidence' that the waiver is
‘considered and intelligent.'”
Pallares-Galan, 359 F.3d at 1097. “Courts
should indulge every reasonable presumption against waiver
and they should not presume acquiescence in the loss of
fundamental rights.” U.S. v. Lopez-Vasquez, 1
F.3d 751, 754 (9th Cir. 1993) (per curiam) (citing Barker
v. Wingo, 407 U.S. 514, 525 (1972)) (citations omitted).
record shows that Defendant waived his right to appeal the
Final Administrative Removal Order (FARO).
Ex. F, Dkt. No. 23-1 at 3. The above excerpt states in
pertinent part: “I admit the allegations and charge in
this Notice of Intent, I admit that I am deportable and
acknowledge that I am not eligible for any form of relief
from removal. I waive my right to rebut the above charges
and my right to file a petition for review of the Final
Removal Order” Id. (emphasis added). Defendant
disputes that this waiver was made knowingly and
intelligently and asserts that the Government cannot prove
the opposite was true by clear and convincing evidence. The
argues that his waiver of his right to appeal was not made
knowingly or intelligently because the form he signed did not
adequately inform him that he could contest the legal
conclusion that his conviction under Section 220(a) of the
California Penal Code was an aggravated felony within the
meaning of Section 1101(a)(43)(U) of the INA. Dkt. No. 23 at
2. The Government does not meaningfully rebut this argument.
See Dkt. No. 28 at 8.
who commit an aggravated felony at any time after admission
are deportable. INA § 237(a)(2)(A)(iii). “A
non-LPR who is deportable under INA § 237(a)(2)(A)(iii),
” as alleged in Cazares-Rodriguez's Notice of
Intent, “may be subject to the issuance of a removal
order under either INA § 238(b) or INA §
240.” Flores-Ledezma v. Gonzales, 415 F.3d
375, 379 (5th Cir. 2005) (citing INA § 238(b)). Removals
brought under INA § 240 are conducted by an immigration
judge at a formal hearing. See generally INA §
240; 8 U.S.C § 1229a; see also 8 C.F.R. §
1240.10 (governing hearings under § 240). Section 238(b)
removals, however, are expedited removals and do not entitle
the noncitizen to a hearing before an immigration judge.
See generally INA § 238; 8 U.S.C. § 1228.
“Instead, a DHS [Department of Homeland Security]
officer, who need not be an attorney, presides over this
expedited removal process.” See Etienne v.
Lynch, 813 F.3d 135, 139 (4th Cir. 2015) (citing 8 C.F.R
§ 238.1(a) (proceedings under Section 238(b) of the
initiates expedited removals under § 238(b) by serving
the noncitizen with “Form I-851, Notice of Intent to
Issue a Final Administrative Deportation Order.”
See 8 C.F.R. § 238.1. “The Notice of
Intent shall set forth the preliminary determinations and
inform the alien of the Service's intent to issue Form I
-851 A, Final Administrative Order, without a hearing before
an immigration judge.” Id. § 238.1(b)(2).
The Notice of Intent is the charging document and
“shall include allegations of fact and conclusions of
law.” Id. The Notice of Intent also must
advise the noncitizen that they may be represented by
counsel; that they can request withholding of removal; that
they can inspect the evidence supporting the charges; and
that they may rebut the charges within ten calendar days
after service of the notice. Id.
noncitizens who wish to contest their removal are presented
with the following options on Form I -851:
Ex. F, Dkt. No. 23-1 at 3 (the Court observes that the word
“dependability” should be
“deportability.”). The regulations further
indicate that a noncitizen who chooses to rebut the charges
must “indicate which finding(s) are being
challenged” and should submit supporting evidence.
See 8 C.F.R. § 238.1(c)(2). In the event that
the noncitizen's “timely rebuttal, raises a genuine
issue of material fact regarding the preliminary findings . .
. the deciding Service officer may either (1) obtain
additional evidence from any source, including the
[noncitizen], or . . . (2) initiate removal proceedings under
section 240 of the Act.” 8 C.F.R. §
least two circuit courts have concluded that the Section 238
removal procedures do not provide noncitizens with the
opportunity to contest that they qualify as aggravated felons
and, therefore, that a noncitizen who fails to raise such an
argument has not failed to exhaust. See Etienne, 813
F.3d at 140-41 (holding that noncitizen was not required to
raise his legal challenge to removal in order to meet the
exhaustion requirement of INA § 242(d)(1) because Form
I-851 did not offer noncitizen “opportunity to
challenge the legal basis of his or her removal”);
see also Valdiviez-Hernandez v. Holder, 739 F.3d
184, 187 (5th Cir. 2013) (per curiam) (holding that INA
§ 238 and corresponding regulations did not provide
noncitizen “with an avenue to challenge the legal
conclusion that he does not meet the definition of an alien
subject to expedited removal” as an aggravated felon.).
But see Malu v. U.S. Att'y Gen., 764 F.3d 1282
(11th Cir. 2014) (holding that noncitizen failed to exhaust
because he did not contest that he was an aggravated felon).
While the Court does not necessarily agree with the
conclusion in Valdiviez that INA § 238(b) and
its corresponding regulations do not provide a noncitizen
with “an avenue to challenge” the aggravated
felony determination, the Court is nonetheless persuaded by
the conclusion in Etienne that Form I-851, at the
very least, does not offer noncitizens the opportunity to
challenge the legal basis of removal.
Etienne court pointed out, “Form I-851 offers
no obvious opportunity to raise a legal challenge.” 813
F.3d at 141. It directs a noncitizen who wishes to rebut the
charge of removability to contest their citizenship, legal
status, or the fact that they were convicted, see
supra Def.'s Ex. F, but does not “hold
out” the option of challenging the underlying legal
conclusion that the noncitizen is an aggravated felon.
Id. (“Exhaustion of administrative remedies .
. . means using all steps that the agency holds out,
and doing so properly.”) (citing Woodford
v. Ngo, 548 U.S. 81, 90 (2006)) (emphasis in original).
As such, the court concluded, because the form “offers
no checkbox for lodging any specific legal challenges, a
legal challenge in general, or other unenumerated challenges,
” the noncitizen was not required to raise his legal
challenge to the aggravated felony determination in order to
satisfy administrative exhaustion. Id. at 141-42.
Court finds that this reasoning applies with equal force in
the context of the § 1326(d) requirements. In order for
Cazares-Rodriguez to make a meaningful waiver of his
“right to rebut and contest the above charges”
and his “right to file a petition for review of the
Final Removal Order, ” he had to know that he could
challenge his classification as an aggravated felon.
a conviction qualifies as an aggravated felony has serious
consequences, including ineligibility for discretionary
relief from removal and most other forms of relief.
See INA § 238(b)(5); 8 U.S.C. § 1228(b)(5)
(“No alien described in this section shall be eligible
for any relief from removal that the Attorney General may
grant in the Attorney General's discretion.”);
see also Id. § 1158(b)(2)(B)(i) (aggravated
felons may not apply for asylum); id. §
1229b(a)(3) (same for cancellation of removal); id.
§ 1229c(a)(1) (same for voluntary departure). But
see Id. § 1231(b)(3) (aggravated felon may apply
for withholding of removal); § 1231(b)(3) (aggravated
felon may apply for a waiver of admissibility if individual
is otherwise eligible to apply for admission); §
1101(a)(15)(T), (U) (aggravated felon may still apply for T
(trafficking victims) and U (victim of criminal activity)).
Whether an individual has committed an aggravated felony is
also the basis for being placed in expedited removal
proceedings in the first place. See generally INA
§ 238; 8 U.S.C. § 1228; see also Torres v.
Lynch, 136 S.Ct. 1619, 1621 (2016). Moreover and most
importantly, being classified as an aggravated felon was the
stated legal basis for Defendant's deportability.
See Def.'s Ex. F, Dkt. No. 23-1 at 3; see
also 8 U.S.C. § 1227(a)(2)(a)(iii).
-851, however, gave Cazares-Rodriguez no indication that he
could challenge his placement in expedited removal
proceedings or that he could challenge his eligibility for
relief or that he could challenge his very deportability all
by contesting the legal conclusion that he was an aggravated
felon. Indeed, the form that Defendant signed, as the
Etienne court concluded, speaks only of factual
and even if the Notice of Intent was read to
Cazares-Rodriguez in Spanish - a fact that Defendant
contests, see Def.'s Ex. G, Def.'s Affidavit
(“The agent did not read the document to me in
Spanish”) - the Form's silence as to the
consequences of waiver render it independently problematic
under the Ninth Circuit's jurisprudence concerning
Ex. F, Dkt. No. 23-1 at 3. That Defendant received
translation of what the document said - a dubious proposition
given Defendant's affidavit - does not mean that
Defendant understood what he was giving up by waiving his
right to rebuttal and his right to further judicial review.
United States v. Ramos, a case that assessed the
validity of stipulated removals, the Ninth Circuit made clear
that a noncitizen has to both appreciate the nature of what
he is signing and understand the consequences flowing from
any waiver therein. 623 F.3d 672, 681-82 (9th Cir. 2010).
Given that it is the Government's burden to establish a
valid waiver, it is not enough, the Ramos court
concluded, for the Government to argue that the noncitizen
“did not give any indication to the deportation officer
that he did not understand or appreciate what he was
signing.” Id. at 681. The Ramos court
further decreed that a waiver is not “considered and
intelligent” if the Government cannot establish that
the noncitizen “received an adequate advisement of the
consequences of his waiver of appeal.” Id.
Defendant has submitted an affidavit to the Court that
indicates that he did not understand what he was signing. In
it he asserts that he met an immigration official in San
Bernadino, California who brought him completed paperwork and
who told him “where to sign and where to
initial.” Def.'s Ex. G, Dkt. No. 23-1 at 5. The
agent did not read the document to him in Spanish,
Defendant did not have the opportunity to read the document
himself. Id. Cazares-Rodriguez further asserts that
the “agent did not explain to me what I was
signing” and “did not explain what would happen
if I did not sign the document, or any rights I would have if
I saw an immigration judge.” Id. Crucially,
Defendant adds that “The agent did not explain that I
had the right to appeal or that I had given up that right by
signing where he told me to sign. [¶] If I had known I
had the right to appeal the determination of the ...