United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE RE:
DKT. NO. 12
H. KOH UNITED STATES DISTRICT JUDGE
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.”).
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.
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
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.”); 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.
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).
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.
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.
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.
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.
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.
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.
WISH TO CONTEST:
contest my deportability because: (Attach any supporting
[ ] I am a citizen or national of the United ...