Opinion
Case No.: EDCR 19-00265-CJC
2021-08-13
UNITED STATES of America, Plaintiff, v. Khachik MKRTCHYAN, Defendant.
David Y. Pi, Assistant US Attorney, Rachel Nechama Agress, Assistant US Attorney, AUSA - Office of US Attorney General Crimes Section, Los Angeles, CA, for Plaintiff.
David Y. Pi, Assistant US Attorney, Rachel Nechama Agress, Assistant US Attorney, AUSA - Office of US Attorney General Crimes Section, Los Angeles, CA, for Plaintiff.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT [Dkt. 75]
CORMAC J. CARNEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
On July 17, 2019, Defendant Khachik Mkrtchyan was charged with illegal reentry by a deported or removed alien in violation of 8 U.S.C. §§ 1326(a) and (b). (Dkt. 4 [Indictment].) Now before the Court is Defendant's motion to dismiss the Indictment on the ground that his initial deportation order was invalid. (Dkt. 75 [Motion to Dismiss Indictment, hereinafter "Mot."].) For the following reasons, Defendant's motion is GRANTED .
II. FACTUAL BACKGROUND
Defendant is an Armenian national who fled to the United States with his father, Seryozha Mkrtchyan, in 2001. (Dkt. 76-2 [Decision of Immigration Judge, hereinafter "IJ Decision"] at 2.) Neither Defendant nor his father had a valid entry document permitting them to enter the United States, and shortly after they arrived, Defendant's father applied for asylum. Defendant was 17 at the time.
Before leaving Armenia, Defendant lived with his father, Seryozha, his mother, Hasmik, and his older brother, Ari. From 1992 to 1998, Seryozha worked as a truck driver delivering equipment for the Armenian National Movement ("ANM"), the ruling political party in Armenia. By 1997, Seryozha started to notice corruption in the ANM as he was instructed to divert supplies and food from their proper destinations to high-ranking party officials. He never reported this activity for fear of retribution, but he stopped working for ANM in February 1998 as a result. (Dkt. 75-1 Ex. E [hereinafter "Ex. E."] at 380–81.) To disguise the reason for his departure, Seryozha quit when he had an illness and multiple physical ailments. (Id. ) After he left, his superiors "treated [him] badly" and withheld his last paycheck. (Id. at 381.)
A month later, in March 1998, Defendant's brother, Ari, a soldier in the Armenian military, was killed. Military officers informed Seryozha that Ari was killed in "an attack on the border," but Seryozha was skeptical because Ari's death occurred during a ceasefire and no one else in his unit was killed. (Id. at 388–89.) Seryozha never received any further information about his eldest son's death.
In 1999, Seryozha joined a new political party, known as "Unity," with hopes of avoiding the ANM's corruption and getting more information about his son's death. (Id. at 394.) Shortly after he began assisting the party and organizing meetings, however, gunmen stormed the Armenian Parliament and killed seven representatives including the leaders of the Unity Party. Following the attack, Seryozha was taken into custody where he was held with four other Unity Party members for 48 hours. Each night, he was beaten by officers who repeatedly punched him in the face and kicked him in his kidneys. (Id. at 400–01.) Seryozha spent the next three days in the hospital. (Id. at 402.)
A year later, in November 2000, Defendant was called to serve in the Armenian military. According to Armenian law, Defendant should have been exempt from service, but military officials told Seryozha that Defendant could avoid service only if he paid a bribe of at least $6,000. (Id. at 413.) Seryozha refused to pay and two months later, three military officials arrived at his family's home and demanded that Defendant leave with them. (Id. at 414.) When Seryozha protested, the officers turned to violence. One officer hit Seryozha several times in the face while another beat Defendant's mother to the point that she suffered a stroke and was hospitalized for four days. (Id. at 415; Dkt. 75-1 Ex. A at 87.)
The next day, Defendant escaped from military custody and military police visited Seryozha demanding to know Defendant's whereabouts. When Seryozha would not say, he was transported to the Ministry of National Security, beaten, and held for 48 hours in a dark room. (Ex. E. at 425–27.) Upon Seryozha's release, the officers told him that he had one week to return with Defendant.
Days after this last encounter, Seryozha took his wife to her family's village while she was recovering from her injuries. He then rendezvoused with Defendant and the two travelled to the United States by way of Mexico.
III. PROCEDURAL BACKGROUND
After entering the United States without valid entry documents, Seryozha applied for asylum on behalf of himself and Defendant. In June 2003, an Immigration Judge conducted an evidentiary hearing. (See Ex. E.) Despite finding Defendant and Seryozha's testimony credible, the Immigration Judge denied asylum based on his conclusion that they were not persecuted due to their political opinions. (IJ Decision at 16.) The Immigration Judge consequently ordered Defendant and Seryozha removed from the United States to Armenia. (Id. at 19.) They appealed to the Board of Immigration Appeals ("BIA"), and the BIA affirmed in September 2004, adopting the reasoning of the Immigration Judge. (Dkt. 75-1 Ex. K.)
Following the BIA's decision, Defendant and Seryozha sought to appeal the BIA decision. At this point, Defendant's mother had joined them in the United States and they were contacted by a man named Mr. Megrhabayan who held himself out as a lawyer. (Dkt. 75-1 [Declaration of Hasmik Nazaryan, hereinafter "Hasmik Declaration"] ¶¶ 3–5.) Megrhabayan promised to pursue Defendant and Seryozha's appeal in the Ninth Circuit but he never filed a brief. Defendant's mother repeatedly asked Megrhabayan for status updates on the appeal, and he assured her for months that she should not worry because these appeals can take years. (Id. ¶ 8.) By the time Defendant's family realized that Megrhabayan was a fraudster, it was too late—the Ninth Circuit had dismissed the case for failure to prosecute and Megrhabayan could not be found. (Id. ¶ 9.)
Defendant remained in the United States following the dismissal of his appeal and in 2010, he was convicted of several crimes in California state court, including grand theft access card, burglary, receipt of stolen property, and possession of a forged driver's license. Defendant served a prison sentence of approximately one year before being removed from the United States in early 2012. In 2014, United States Immigration and Customs Enforcement learned that Defendant had reentered the United States. Defendant was consequently indicted for illegal reentry in violation of 8 U.S.C. § 1326.
IV. DISCUSSION
A prosecution for illegal reentry under § 1326(a) generally requires the government to prove two things: (1) the alien "has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding"; and (2) the alien subsequently "enter[ed], attempt[ed] to enter, or [wa]s ... found in, the United States." 8 U.S.C. § 1326(a). Because the first element of a § 1326 illegal-reentry offense is a valid removal order, "a defendant charged with [illegal reentry] may collaterally attack the removal order under the due process clause." United States v. Camacho-Lopez , 450 F.3d 928, 930 (9th Cir. 2006) (citation omitted); see United States v. Mendoza-Lopez , 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). To succeed in collaterally attacking the prior removal order, a Defendant must show that "(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). Defendant has met each requirement.
A. Section 1326(d)(1) : Exhaustion
First, Defendant exhausted his available administrative remedies. A defendant "clearly satisfie[s]" this requirement "by showing that he appealed the IJ's decision to the BIA," which Defendant did here. United States v. Gonzalez-Villalobos , 724 F.3d 1125, 1132 (9th Cir. 2013) ; (see also Dkt. 76 [Government Opposition, hereinafter "Opp."] at 7 ["In this case, defendant cannot satisfy the second or third requirements of § 1326(d)."].)
B. Section 1326(d)(2) : Deprivation of Judicial Review
Second, Defendant has established that "the deportation proceedings at which the [removal] order was issued improperly deprived [him] of the opportunity for judicial review." 8 U.S.C. § 1326(d)(2). "In a criminal prosecution [for illegal reentry] under § 1326, the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation." United States v. Zarate-Martinez , 133 F.3d 1194, 1197 (9th Cir. 1998). Defendant was deprived of such an opportunity for judicial review when he was defrauded by a phony attorney who prevented him from appealing his removal order to the Ninth Circuit.
Contrary to the government's assertion, Defendant was deprived of this right to judicial review by the "deportation proceedings at which the [removal] order was issued" because these "proceedings" include appellate review by the Ninth Circuit. 8 U.S.C. § 1326(d)(2). Federal law designates the federal courts of appeals as the "sole and exclusive means for judicial review" of a removal order. 8 U.S.C. § 1252 ; Nasrallah v. Barr , ––– U.S. ––––, 140 S. Ct. 1683, 1690, 207 L.Ed.2d 111 (2020). And the Ninth Circuit has described its appellate review as part of the "deportation proceedings." For example, in United States v. Lopez-Chavez , the Ninth Circuit dismissed the defendant's indictment for illegal reentry. It held that the defendant "received ineffective assistance of counsel throughout the immigration proceedings " when defense counsel neither "file[d] an appeal of the removal order with the BIA, nor [with] the Court of Appeals for the Seventh Circuit." 757 F.3d 1033, 1037 (9th Cir. 2014) (emphasis added). The Court explained that "no competent attorney would have failed to appeal to the BIA and then [to] the Seventh Circuit" when the BIA had previously held that it "would apply whatever rule the circuit adopted" on remand. Id. ; see United States v. Garcia-Morales , 150 F. Supp. 3d 1201, 1208 (S.D. Cal. 2015) ("[T]he Ninth Circuit has found that failure to file a necessary appeal can constitute constitutionally deficient performance in the context of an immigration proceeding."). Similarly, in United States v. Gonzalez-Villalobos , the Ninth Circuit held that the defendant "received what process § 1326(d)(2) promises" when he was able to "appeal the IJ's deportation order to the BIA, and [there was] no impediment to his ability to appeal the BIA's decision to a federal court." 724 F.3d 1125, 1133 (9th Cir. 2013) ; Garcia-Morales , 150 F. Supp. 3d at 1208 (dismissing defendant's indictment for illegal reentry based on ineffective assistance of counsel when counsel "failed to file a petition for review to the Ninth Circuit following the BIA's final [ ] order."). Here, Defendant meets the requirements of § 1326(d)(2) because he has identified a substantial "obstacle that prevented him from obtaining judicial review of a deportation order." Gonzalez-Villalobos , 724 F.3d at 1132. Defendant and his family were conned by a fake attorney, Mr. Megrhabayan, who promised to appeal their case to the Ninth Circuit but never filed a brief. Defendant's mother repeatedly asked Megrhabayan for status updates on the appeal, and he assured her for months that she should not worry because these appeals can take years. Megrhabayan's failure to pursue appellate review by the Ninth Circuit constituted ineffective assistance of counsel that deprived Defendant of the opportunity for judicial review in a manner that satisfies § 1326(d)(2). Garcia-Morales , 150 F. Supp. 3d at 1208.
The Court also finds it implausible that the statutory phrase "at which the [removal] order was issued" limits § 1326(d)(2) to only defects occurring during the administrative proceedings. The only proceeding at which a removal order is actually issued is the initial determination by the Immigration Judge. See Noriega-Lopez v. Ashcroft , 335 F.3d 874, 883 (9th Cir. 2003) ("[O]nly an IJ ... may issue orders of deportation. The BIA ... is restricted to affirming such orders, not issuing them in the first instance."). And Ninth Circuit precedent makes clear that defects occurring after an Immigration Judge's ruling satisfy § 1326(d)(2). See Lopez-Chavez , 757 F.3d at 1037 (dismissing the indictment for illegal reentry due to ineffective assistance of counsel when defense counsel neither "file[d] an appeal of the removal order with the BIA, nor [with] the Court of Appeals for the Seventh Circuit"). Indeed, even the government concedes that an attorney's failure to appeal to the BIA satisfies § 1326(d)(2). (Dkt. 76 [Opposition] at 9.)
C. Section 1326(d)(3) : Unfairness
Third, Defendant has established that the entry of his removal order was fundamentally unfair. 8 U.S.C. § 1326(d). "An underlying removal order is fundamentally unfair if: (1) [an alien's] due process rights were violated by defects in the underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." United States v. Ortiz-Lopez , 385 F.3d 1202, 1204 (9th Cir. 2004). Defendant's due process rights were violated by the defects in his underlying deportation proceeding because, as discussed above, his ineffective assistance of counsel deprived him of "a meaningful opportunity for judicial review of the underlying deportation." United States v. Zarate-Martinez , 133 F.3d 1194, 1197 (9th Cir. 1998). Defendant suffered prejudice as a result.
To show that he was prejudiced by the underlying removal proceedings, Defendant "does not have to show that [he] actually would have been granted relief." United States v. Cisneros-Rodriguez , 813 F.3d 748, 761 (9th Cir. 2015). "Instead, [he] must only show that [he] had a ‘plausible’ ground for relief from deportation." Id. The plausibility standard requires Defendant to "show that relief was more than ‘possible,’ but [he] need not show that it was ‘probable.’ " Id. ; United States v. Raya-Vaca , 771 F.3d 1195, 1207 (9th Cir. 2014), abrogated on other grounds by Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020) ("[A defendant] need only establish some evidentiary basis on which relief could have been granted."). Thus, Defendant need only demonstrate that it was plausible that the Ninth Circuit would have reversed the Immigration Judge's decision to remove him from the country based on his father's persecution. The Court reviews the Immigration Judge's determinations as the Ninth Circuit would, applying de novo review to legal conclusions and a substantial evidence standard to factual findings. Parada v. Sessions , 902 F.3d 901, 908 (9th Cir. 2018). In the underlying immigration proceedings, Defendant and Seryozha sought to remain in the United States by seeking asylum, but their application was denied by the Immigration Judge. To be eligible for asylum, an individual must establish that he is a refugee—someone who is unable or unwilling to return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Parada v. Sessions , 902 F.3d 901, 909 (9th Cir. 2018). Defendant and Seryozha asserted that they were refugees who had been persecuted because of their political opinion. The Immigration Judge credited their testimony but concluded that they were not eligible for asylum because their persecution was not "on account of" their political opinions. (IJ Decision at 16.)
Because Defendant's father filed the application for asylum before Defendant turned 21, Defendant was eligible for asylum based on the persecution of his father. 8 U.S.C. § 1158(b)(3)(B).
The Court finds it more than plausible that the Ninth Circuit would have come to a different conclusion based on the persecution of Seryozha. Under the law at the time of the underlying proceeding, an applicant was eligible for asylum "so long as the applicant produce[d] evidence from which it is reasonable to believe that the persecutor's actions were motivated at least in part by a protected ground." Parada , 902 F.3d at 909. To demonstrate past persecution on account of a political opinion, an applicant must satisfy two requirements: (1) "he must show that he held (or that his persecutors believed that he held) a political opinion" and (2) "he must show that his persecutors persecuted him because of his political opinion." Ahmed v. Keisler , 504 F.3d 1183, 1192 (9th Cir. 2007).
"A political opinion encompasses more than electoral politics or formal political ideology or action." Id. "Refusal to accede to government corruption can constitute a political opinion for purposes of refugee status." Grava v. I.N.S. , 205 F.3d 1177, 1181 (9th Cir. 2000). And when there "is no evidence of a legitimate prosecutorial purpose for a government's harassment of a person[,] there arises a presumption that the motive for harassment is political." Ratnam v. I.N.S. , 154 F.3d 990, 995 (9th Cir. 1998).
Here, after Seryozha stopped working for ANM, Armenia's dominant political party, he was repeatedly harassed by the Armenian government. The harassment only intensified after he joined ANM's opposition party. Seryozha was taken into custody and beaten multiple times. After his eldest son was killed during military service, he was told that his remaining son would be forced into military service as well if he did not pay a substantial bribe. And he saw his wife get beaten so brutally that she had a stroke and was hospitalized for four days. The Immigration Judge held and the government now contends that these actions were related to legitimate government investigations and conduct. The Court disagrees.
Seryozha held a political opinion contrary to the Armenian government and he took public action that notified the Armenian government of his views. He stopped working for Armenia's dominant political party after he was exposed to corruption within the party. He then joined an opposition party that was known as being "on [the] people's side" and he actively organized meetings for that party. (Ex. E at 450.) And following the death of his son in the Armenian military, Seryozha publicly complained to the Armenian government and claimed that they were lying about the cause of his son's death. (Id. 389–94.)
Shortly after Seryozha took these actions, he and his fellow Unity Party members became suspects in the murder of multiple Unity Party leaders. Seryozha and the other suspects were beaten as part of the purported investigation. While the government implies that this abuse was in connection with a legitimate investigation, the Court finds it implausible that members of a political party would be the main suspects in the murder of their own leaders. In any event, the Court has no hesitation in concluding it is plausible that the Armenian government's actions "were motivated at least in part by" Seryozha's political opinion. Parada , 902 F.3d at 909. Indeed, the suspicious and unexplained death of his eldest son, the wrongful conscription into the military of his other son, and the repeated beatings that he and his wife suffered at the hands of government officials—which all coincided with his opposition to government corruption—warranted Seryozha's asylum in the United States.
V. CONCLUSION
For the foregoing reasons, Defendant has met the three requirements of 8 U.S.C. § 1326(d). Accordingly, his motion to dismiss the indictment is GRANTED .