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United States v. Rosas-Ramirez

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

June 26, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTONIO ROSAS-RAMIREZ, Defendant.

          ORDER GRANTING MOTION TO DISMISS 1998 ADMINISTRATIVE REMOVAL AND 2002 REINSTATEMENT FROM INDICTMENT RE: DKT. NO. 29

          LUCY H. KOH, UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Antonio Rosas-Ramirez's (“Defendant”) motion to dismiss the indictment for illegal reentry following deportation in violation of 8 U.S.C. § 1326 as to Defendant's 1998 administrative removal. ECF No. 29 (“Mot.”). Defendant also challenges the 2002 reinstatement of the 1998 administrative removal. Id.

         In 1996, Defendant was convicted under California Health & Safety Code § 11352 (“1996 conviction”). In 1998, Defendant was placed in administrative removal proceedings because his 1996 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 1998, an immigration officer ordered Defendant removed from the United States. In 2002, Defendant was once again ordered removed from the United States based on the reinstatement of the 1998 removal order. In 2014, Defendant was once again removed from the United States after a hearing before an Immigration Judge.

         Now, Defendant asserts that he was not informed of his right to seek judicial review of the immigration officer's decision that his 1996 conviction was an aggravated felony. Defendant also argues that the 1996 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 1998 administrative removal and the 2002 reinstatement of the 1998 administrative removal from the indictment. However, Defendant's 2014 removal remains a valid predicate removal that independently supports the indictment.

         I. BACKGROUND

         A. Factual Background

         In 1996, Defendant was convicted of one count of a violation of Cal. Health & Safety Code § 11352. ECF No. 29-1 at Ex. F. Cal. Health & Safety Code § 11352 punishes “every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance . . . . or (2) any controlled substance classified in Schedule III, IV, or V which is a narcotic drug.” The record is unclear as to of what specific conduct prohibited by § 11352 Defendant was convicted because Defendants' criminal complaint states only that Defendant was charged with “SALE/TRANSPORTATION/OFFER TO SELL CONTROLLED SUBSTANCE.” ECF No. 29-1 at Ex. E. The criminal complaint further states that Defendant “did willfully and unlawfully transport, import into the State of California, sell, furnish, administer, and give away, and offer to transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to wit, heroin.” Id. Defendants' abstract of judgment states only “SALE TRANS OFR -HEROIN.” Id. at Ex. F. Defendant was sentenced to 3 years of imprisonment. Id.

         On June 24, 1998, an immigration officer served Defendant with a “Notice of Intent to Issue a Final Administrative Removal Order” (“Notice of Intent”). ECF No. 29-1 at Ex. A. The Notice of Intent stated that Defendant was a citizen of Mexico and entered the United States on or about January 1994 without inspection, and that Defendant was convicted in the California Superior Court for the County of Santa Cruz for violating Cal. Health & Safety Code § 11352. Id. 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 Act, 8 U.S.C. 1101(a)(43).” Id. 8 U.S.C. § 1101(a)(43)(B) states that “aggravated felony” means “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).” The Notice of Intent contained a section called “Your Rights and Responsibilities.” ECF No. 29-1 at 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 administrative order of removal is issued. Id.

         The Notice of Intent also contained 4 other sections. The first section was entitled “Certificate of Service.” The Certificate of Service section stated: “I served this Notice of Intent upon the above named person.” 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 Spanish language.” Defendant was served on June 24, 1998. 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 FINAL ADMINISTRATIVE REMOVAL ORDER.” This second section contains Defendant's signature acknowledging receipt of the Notice of Intent, and was dated June 24, 1998 at 13:00. 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.

         As shown below, the fourth section was entitled "I Do Not Wish to Contest." This fourth section stated:

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 and contest the above charges and my right to file a petition of the Final Removal Order. I wish to be deported to Mexico. I also waive the 14-day period of execution of the Final Removal Order.

Id. Defendant signed the "I Do Not Wish to Contest" section on June 24, 1998 at 13:00, witnessed by the immigration officer who also signed on June 24, 1998, at 13:00.

         On June 26, 1998, the immigration officer served Defendant with a “Final Administrative Removal Order, ” dated June 25, 1998. Id. at Ex. B. On July 15, 1998, Defendant was deported to Mexico. Id. at Ex. C.

         Defendant eventually returned to the United States. It is unclear from the record when Defendant was apprehended in the United States after deportation. However, on January 23, 2002, a “Notice of Intent/Decision to Reinstate Prior Order” was issued requiring Defendant's removal from the United States based on the prior 1998 removal order. Id. at Ex. D. The 2002 Order was signed on February 7, 2002. Id. Thus, Defendant was removed from the United States again without a hearing before an Immigration Judge.

         The record is again unclear when Defendant was apprehended in the United States. However, Defendant eventually returned to the United States once more. In 2014, Defendant was removed from the United States after a hearing before an Immigration Judge.

         B. Procedural History

         On February 8, 2018, a grand jury in the Northern District of California returned an indictment, charging Defendant with one count of a violation of 8 U.S.C. § 1326, Illegal Re-Entry Following Deportation. ECF No. 1 (“Indictment”). Specifically, the grand jury charged: “[o]n or about April 24, 2014, in Santa Clara County in the Northern District of California, the [Defendant], an alien, previously having been excluded deported and removed from the United States on or about July 15, 1998, February 25, 2002, and March 1, 2014, was found in the United States, with the Attorney General of the United States and the Secretary for Homeland Security not having expressly consented to a re-application by the defendant for admission into the United States.” Id.

         Defendant filed a motion to dismiss the indictment as to Defendant's 2014 removal on December 5, 2019. ECF No. 13. The government filed an opposition on January 16, 2019. ECF No. 19. Defendant filed a reply on January 23, 2019. ECF No. 20. On February 4, 2019, the Court denied Defendant's motion to dismiss Defendant's indictment as to his 2014 removal. ECF No.

         Defendant filed a motion for leave to file a motion for reconsideration of that Order on February 5, 2019. ECF No. 25. The government filed an opposition on February 19, 2019. ECF No. 28. On April 8, 2019, the Court denied Defendant's motion for leave to file a motion for reconsideration. ECF No. 35.

         In the meantime, on February 27, 2019, Defendant filed the instant motion to dismiss the indictment as to Defendant's 1998 administrative removal and the 2002 reinstatement. See Mot. After receiving an extension, the government filed an opposition on March 28, 2019. ECF No. 34 (“Opp'n”). Defendant replied on April 9, 2019. ECF No. 36 (“Reply”).

         On April 19, 2019, the Court ordered additional briefing from both parties. ECF No. 38. Defendant filed his supplemental brief on May 8, 2019. ECF No. 43. The government ...


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