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United States v. Arteaga-Centeno

United States District Court, N.D. California

July 16, 2019




         Defendant Jose Luis Arteaga-Centeno has filed a Second Motion to Dismiss (Dkt. 108) urging this Court to dismiss the sole count in the indictment against him, illegal reentry of a removed noncitizen in violation of 8 U.S.C. §§ 1326(a), (b)(2).[1] Second Mot. to Dismiss; see also Indictment (Dkt. 1). This Motion to Dismiss presents a difficult question of law for which there is no controlling Ninth Circuit precedent. While the Court determines that dismissal of the indictment is not called for, it also acknowledges that reasonable minds may differ as to the application of the law at issue here. The Court is therefore eager for the guidance of the Ninth Circuit on this issue.

         The Court DENIES Arteaga's Motion to Dismiss.

         I. BACKGROUND

         Before addressing the complex legal issues presented in this case, the Court first explains the relevant factual and procedural issues.

         A. Factual Background

         Arteaga, a native of Honduras, first entered the United States without inspection in 1996. Blank Decl. (Dkt. 9) ¶ 2. In 1997, he was convicted of possession crack cocaine for sale in California state court. Id. Thereafter, he entered removal proceedings. Id.

         The government issued a Notice to Appear (“NTA”) to Arteaga in April 1997. Lucas Dec'l Exh. 3 (Dkt. 11-1). That NTA contained blank spaces for the date and time of the hearing and for the “[c]omplete Address of Immigration Court, Including Room Number, if any.” Id. The date and time spaces were left blank, and the location blank was completed with the typed statement “[t]o be calendared and notice provided by the Office of the Immigration Judge.” Id. The NTA also contained Arteaga's signature, an INS officer's signature, and the date, April 17, 1997. Id. It further contained an “X” in a box indicating that the NTA was served on Arteaga in person, a box next to the sentence, “[a]ttached is a list of organizations and attorneys which provide free legal services, ” and a box indicating that the noncitizen “was provided oral notice in the Spanish language of the time and place of his or her hearing and the consequences of failure to appear[.]” Id.

         On the same day that Arteaga signed the NTA, April 17, 1997, he also signed a document titled “Notice of Rights and Request for Disposition.” Id. Exh. 4. That documents contains three statements:

[1] I request a hearing before the Immigration Court to determine whether or not I may remain in the United States. [2] I request a hearing before the Immigration Court to determine whether or not I may remain in the United States. [3] I admit that I am in the United States illegally, and I believe I do not face harm if I return to my country. I give up my right to a hearing before the Immigration Court. I wish to return to my country as soon as arrangements can be made to effect my departure. I understand that I may be held in detention until my departure.

Id. The first and second statements had initials next to them and an unchecked box. Id. The third statement had no initial, but had an “X” in the box next to it. Id. Arteaga's signature and the date, April 17, 1997, appeared below those statements. Id. Below that signature line was a checked box by the statement, “[n]otice read to subject by Mario Huelga, in the Spanish language, ” along with Huelga's signature and the date, April 17, 1997. Id.

         In his declaration, Arteaga recalls that the above-described documents “were not translated line by line into the Spanish language for [Arteaga]. Instead, the agent summarized what the documents purportedly said. When the agent showed these documents to [him], they already contained ‘x' marks in various boxes. The agent told [Arteaga] where to sign [his] name.” Arteaga Dec'l ¶ 5 (Dkt. 18). He further states that, regarding the NTA, his “understanding was that signing this document would result in a prompt hearing before a court with the authority to decide whether to deport [Arteaga] or let [him] remain in the country. [He] was not advised that the court lacked jurisdiction over [his] case or that by signing the document [he] would later give up [his] right to claim that the court lacked jurisdiction.” Id. ¶ 5. Further, he states that, contrary to the “X” indicating that Arteaga was provided a list of attorneys who provide free legal services, see Lucas Dec'l Exh. 3, he does not recall receiving any such list. Arteaga Dec'l ¶ 7.

         Mario Huelga, the INS agent whose signature appears on the two above-described forms, submitted a declaration on behalf of the Government. Huelga Dec'l (Dkt. 21). He states that he has no “specific or general recollection of any interactions” with Arteaga, but that he recognizes his signature on the NTA and the Notice of Rights. Id. ¶¶ 3-4. He states that during this period it was his practice to “advise the [noncitizen] of the information in the Notice of Rights, including that he was arrested because he was believed to be in the U.S. illegally, that he had a right to fight his case at a hearing before the Immigration Judge, a right to an attorney, and a right to contact the consulate of his country of origin, ” then ask the noncitizen whether “he would like to fight his case or whether he would rather be deported as soon as possible.” Id. ¶¶ 6-7. Then, “[d]epending on the answer, it was [Huelga's] general practice to either mark, or have the [noncitizen] mark, one of the three boxes in the Request for Disposition.” Id. ¶ 7.

         Arteaga then appeared before an immigration judge (“IJ”). Arteaga Dec'l ¶ 9. Arteaga recalls that:

There was a lawyer there in the courtroom. I do not remember if I ever heard his name. I do not believe that the judge asked me if I was represented by the lawyer or if I wanted to be represented by him. I do not believe that I ever signed anything accepting his representation of me. I did not contact any lawyer prior to the hearing, and I do not recall meeting with any lawyer prior to the hearing. I did not discuss my case or my rights with any lawyer and, to the best of my recollection, the lawyer at the hearing that day was simply there when I arrived at the court. I did not knowingly authorize the lawyer to waive any rights that I might have to stay in the country, and the lawyer never talked to me about any rights I might have to stay in the country.


         Huelga recalls that it was his “general observation that a pro bono attorney would be present in the courtroom [during immigration court proceedings]. It was [his] observation that, prior to the [noncitizen's] removal hearing, the pro bono attorney would meet with the [noncitizen].” Huelga Dec'l ¶ 12.

         Arteaga's current attorney attests that, having listened to the recording of Arteaga's hearing before the IJ:

[T]he immigration judge asked the one attorney who is present in court, purporting to represent all the respondents at the hearing that morning, to state his appearance. The attorney's response is not audible. However, throughout the hearing, the immigration judge can be clearly heard addressing that attorney as ‘Mr. Guajardo.' That lawyer purported to waiver each and every right of each and every respondent in court that morning. That recording also demonstrates that the discussion between the judge and the lawyer regarding the waiver of Mr. Arteaga's right to appeal was not translated into Spanish.

         Blank Suppl. Dec'l ¶ 2 (Dkt. 19); see also Blank Dec'l ¶ 6 (“Some but not all of the IJ's statements were translated into Spanish.”). Despite the attorney's statement in the hearing, Arteaga's immigration file “does not include the necessary form for any lawyer to have filed in order to appear in court on behalf of Mr. Arteaga.” Blank Dec'l ¶ 6.[2]

         The IJ ordered Arteaga removed, Blank Dec'l ¶ 6, and Arteaga was removed on April 25, 1997. Arteaga then re-entered the United States and was again removed in 1998, 2001, 2006, and 2012. Id. Each of these subsequent removals was pursuant to a reinstatement of Mr. Arteaga's original 1997 removal order. Id. The Government also contends that he was also removed in 1997 under the name “Carlos Dorre-Rodriguez, ” based on fingerprint matching, and similarities in background information. Opp. at 5; Lucas Dec'l Exhs. 10, 11. Arteaga responds that the Government has not averred ...

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