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United States v. Cazares-Rodriguez

United States District Court, S.D. California

May 19, 2017



          Hon. Gonzalo P. Curiel United States District Judge

         Defendant 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 § 1326(d).


         A. Expedited Removal

         On May 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.

         In 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.

         B. Section 220(a) Conviction

         Section 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).

         1. Felony Complaint

         On 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.[1] Gov.'s Ex. 2, Dkt. No. 14-2 at 2.

         2. Plea Agreement

         The 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.

         3. Conviction Minutes

         On May 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. at 5.

         4. Abstract of Judgment

         The 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.

         5. Police Report

         On 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.

         The 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 away. Id.

         Sometime 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.

         The 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.


         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 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.

         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. U.S. v. Barajas-Alvarado, 655 F.3d 1077, 1085 (9th Cir. 2011).

         II. Exhaustion & Judicial Review, §§ 1326(d)(1) & (2)

         Defendant 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.

         A 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).

         “For 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).

         The record shows that Defendant waived his right to appeal the Final Administrative Removal Order (FARO).

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         Def.'s 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 Court agrees.

         Defendant 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.[2]

         Noncitizens 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 Act)).

         DHS 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.

         Those noncitizens who wish to contest their removal are presented with the following options on Form I -851:

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         Def.'s 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. § 238.1(d)(2)(ii)(A).

         At 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.[3] 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.

         As the 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.

         The 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.

         Whether 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).

         Form I -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 challenges.

         Accordingly 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 waiver.[4]

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         Def.'s 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.

         In United States v. Ramos, a case that assessed the validity of stipulated removals, [5]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.

         Here, 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, [6] and 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 ...

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