United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO DISMISS 1998 ADMINISTRATIVE
REMOVAL AND 2002 REINSTATEMENT FROM INDICTMENT RE: DKT. NO.
H. KOH, UNITED STATES DISTRICT JUDGE
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
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
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.
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.
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.
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.
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.
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.
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
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.
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
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
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.
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.
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.
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”).
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 ...