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United States v. Aguilar-Castaneda

United States District Court, N.D. California, San Jose Division

June 25, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JUAN AGUILAR-CASTANEDA, Defendant.

          ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE RE: DKT. NO. 12

          LUCY H. KOH UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Juan Aguilar-Castaneda's motion to dismiss Plaintiff United States' (“government”) indictment for illegal reentry following deportation in violation of 8 U.S.C. § 1326. ECF No. 12 (“Mot.”).

         In 2000, Defendant pleaded guilty to one count of Cal. Penal Code § 261.5(c), unlawful sexual intercourse with person under 18. Defendant was placed in administrative removal proceedings because his conviction was classified as an aggravated felony. Administrative removal proceedings, which are limited to noncitizens convicted of an aggravated felony who are not permanent residents, do not require a hearing before an Immigration Judge. 8 U.S.C. § 1228(b). In 2000, an immigration officer ordered Defendant removed from the United States.

         Now, Defendant asserts that he was not informed of his right to seek judicial view of the immigration officer's decision that his 2000 conviction was an aggravated felony. Defendant also argues that the 2000 conviction was not an aggravated felony. Having considered the filings of the parties, the relevant law, and the record in this case, the Court GRANTS Defendant's motion to dismiss the indictment with prejudice.

         I. BACKGROUND

         A. Factual Background

         On January 7, 2000, before the California Superior Court of Monterey County, Defendant pleaded guilty to a felony violation of Cal. Penal Code § 261.5(c), unlawful sexual intercourse with person under 18, otherwise known as statutory rape. ECF No. 16-1, Ex. A; ECF No. 16 at 2 (“Opp.”)[1]; United States v. Gonzalez-Aparicio, 663 F.3d 419, 429 (9th Cir. 2011). Defendant was sentenced to 185 days in jail and 36 months of probation. Opp. at 2; Mot. at 2.

         At an unspecified point in time, Defendant was transferred into the custody of the Immigration and Naturalization Service. ECF No. 13-1, Ex. A. On July 6, 2000, Defendant was served with a Notice of Intent to Issue a Final Administrative Removal Order (“Notice of Intent”). Id. The Notice of Intent stated that Defendant entered the United States on an unknown date in 1987 without inspection by an immigration officer, and that on January 7, 2000, Defendant was convicted in the Superior Court of Monterey County for unlawful sexual intercourse with a minor in violation of Cal. Penal Code § 261.5(c). Id. Moreover, the Notice of Intent also stated that Defendant was deportable without appearing before an Immigration Judge because he was convicted of an aggravated felony “as defined in section 101(a)(43) of the [Immigration and Nationality] Act, ” codified at 8 U.S.C. § 1101(a)(43).

         The government contends that Defendant's conviction under Cal. Penal Code § 261.5(c) is an aggravated felony because a conviction under § 261.5(c) constitutes “sexual abuse of a minor.” Opp. at 3. “[S]exual abuse of a minor” falls under the statutory definition of “aggravated felony” pursuant to 8 U.S.C. § 1101(a)(43)(A). The government also makes a cursory argument that Defendant's conviction might constitute a “crime of violence, ” which is also an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F). Opp. at 4.

         As shown below, the Notice of Intent contained a section called “Your Rights and Responsibilities.” ECF No. 13-1, Ex. A. The section disclosed that Defendant had the right to, inter alia, “rebut the charges stated above (with supporting evidence)” and seek judicial review by filing a petition for review “within 14 calendar days after the date” the final order of removal is issued. Id.

Your Rights and Responsibilities You may choose to be represented (at no expense to the United States government) by counsel, authorized to practice in this proceeding. If you wish legal advice and cannot afford it, contact legal counsel from the list of available free legal services provided to you.
You must respond to the above charges in writing to the Service address provided below within 10 calendar days of service of this notice (or 13 calendar days if service is by mail). In your response you may: request, for good cause an extension of time; rebut the charges stated above (with supporting evidence); request an opportunity to review the government's evidence; admit deporttbility: and/or designate the country to which you choose to be removed in the event that a final order of removal is issued (which designator the Service will honor only to the extent permitted under section 241 of the Act.)
You may seek judicial review of any final administrative order by filing a petition for review within 14 calendar days after the date such final administrative order is issued, or you may waive such appeal by stating, in writing, your desire not to appeal.

         The Notice of Intent also contained four other sections. The first section was entitled “Certificate of Service.” The Certificate of Service section stated: “I served this Notice of Intent. I have determined that the person served this document is the above named individual.” The Certificate of Service section was completed and signed by an immigration officer. The Certificate of Service section also noted that “I explained and/or served this Notice of Intent to the alien in the English language.” Defendant was served with the Notice of Intent on July 6, 2000. Id.

         The second section was an acknowledgement of the receipt of the Notice of Intent. The acknowledgement section stated: “I acknowledge that I have received this Notice of Intent to Issue a Final Administrative Removal Order.” This second section contains Defendant's signature acknowledging receipt of the Notice of Intent, and was dated July 6, 2000 at 12:10 p.m. Id.

         As shown below, the third section was entitled “I Wish to Contest, ” with 4 checkbox options for grounds on which Defendant could contest his deportability. Id. The 4 checkbox options stated: (1) “I am a citizen or national of the United States”; (2) “I am a lawful permanent resident of the United States”; (3) “I was not convicted for the criminal offense described in allegation number 6 above”; and (4) “I am attaching documents in support of my rebuttal and request for further review.” Id. The “I Wish to Contest” section was not completed. Id.

         I WISH TO CONTEST:

         I contest my deportability because: (Attach any supporting documentation):

[ ] I am a citizen or national of the United ...

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