Summary
In United States v. Nava, No. 11cr1199 WGH, 2011 WL 4899954 (S.D. Cal. Oct. 13, 2011), a defendant challenged a similar removal order where an IJ failed to inform the defendant of his eligibility to withdraw his application for admission. The defendant was deemed inadmissible as an alien that knowingly "encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law."
Summary of this case from United States v. Gonzalez-VillanuevaOpinion
CASE NO. 11CR1199 WQH
10-13-2011
UNITED STATES OF AMERICA, Plaintiff, v. GABRIEL VAQUERA NAVA, Defendant.
ORDER
HAYES, Judge:
The matter before the Court is the motion to dismiss indictment due to an invalid deportation (ECF No. 19) filed by the Defendant.
Defendant filed an earlier motion to dismiss the indictment (ECF No. 14) on the grounds that his 2004 deportation order was invalid for failing to inform him of his eligibility for pre-conclusion voluntary departure. At the prior hearing Defendant conceded that he was not eligible for pre-conclusion voluntary departure because he was an "arriving alien." Defendant's motion to dismiss the indictment (ECF No. 14) is denied.
FACTUAL BACKGROUND
On January 30, 2002, at approximately age twenty, the Defendant became a legal permanent resident, through his mother. Defendant had lived in the U.S. for ten to twelve years prior to obtaining legal status. Defendant has six siblings, three are United States citizens and three are legal permanent residents.
On November 25, 2003, Defendant was stopped at the San Ysidro Port of Entry entering into the United States. Defendant was the driver of a vehicle with one passenger. Defendant was detained in immigration custody on allegations of false claim to United States citizenship and alien smuggling.
On December 23, 2003, the Immigration and Customs Enforcement issued a Notice to Appear for removal proceedings to the Defendant. The Notice to Appear stated that:
1. You are an arriving alien...ECF No. 14-3 at 8.
4. [You] are not a citizen or national of the United States;
5. [You] are a native of MEXICO and citizen of MEXICO;
6. On or about November 25, 2003 [you] made application for admission into the United States from Mexico, via the vehicle primary lanes of the San Ysidro Port of Entry, California and presented a California identification card claiming to be a United States citizen.
7. On or about November 25, 2003 [you] knowingly encouraged, induced, assisted, abetted, or aided a Mexican national CERVANTEZ Diaz, David, to enter or try to enter the United States, in violation of law.
On April 15, 2004, an immigration hearing was held. At the hearing, Defendant admitted that he was not a United States citizen and that he was a citizen of Mexico. Defendant denied the remaining allegations in the Notice to Appear. The Government presented evidence related to the allegations that the Defendant made false claim to United States citizenship and aided an illegal entry, including reports by the arresting officers, the transcript of the video recorded statement made by the Defendant at the time of his arrest, and a sworn statement taken from the alleged smuggled alien. Defendant testified that he had no prior arrests. Defendant testified that he was driving the vehicle as a favor for a friend, that his friend asked him to pick up his cousin for a family reunion, and that he asked the individual he picked up if he had documents. Defendant testified that he was not smuggling the individual across the border and that the individual showed him a green card prior to seeking entry. Defendant testified that the officer asked him if he was a United States citizen and that he responded "no" to the officer. Defendant testified that he showed the officer his California identification card and the green card from the passenger.
Defendant testified that he and the passenger were arrested and that he was informed that the passenger's green card was false. Defendant testified that at the time of his arrest, he told the officer that he had a resident card but that he had left it at home. Defendant was subsequently interviewed by another officer. Defendant testified at the immigration hearing that he told the second officer at the time of his arrest that he was "going to get paid $400 to bring the guy back." ECF No. 27 at 39. Defendant explained to the Immigration Judge that he was scared and did not know what to say to the officer. Defendant testified before the Immigration Judge that he was not smuggling the passenger across the border and that he did not claim to be a United States citizen at the time of his arrest. The Immigration Judge found the Defendant's testimony at the immigration hearing was not credible based upon inconsistent statement that the Defendant made to law enforcement at the time of his arrest and inconsistent statements made at the immigration hearing. The Immigration Judge found that the Defendant claimed to be a U.S. citizen and that he "knowingly assisted someone without lawful documents to enter the United States knowing that person did not have proper legal documents." Id. at 71. The Immigration Judge stated: "I am in the position where I have to enter an order deporting you from the United States to Mexico for alien smuggling." Id. at 72. The Immigration Judge entered an order of removal. Defendant did not file an appeal.
On March 20, 2009, a Warrant of Removal/Deportation was entered based upon the prior 2004 removal proceedings. ECF No. 14-3.
On March 29, 2011, the grand jury charged that the Defendant was an alien, who previously had been excluded, deported and removed from the United States, found in the United States in violation of 8 U.S.C. § 1326 (a) and (b). ECF No. 1.
CONTENTIONS OF THE PARTIES
Defendant moves to dismiss the indictment on the grounds that his 2004 deportation order is invalid. Defendant asserts that the Immigration Judge failed to inform him that he was eligible for withdrawal of his application for admission as provided in 8 U.S.C. § 1225(a)(4), and that it is plausible that withdrawal of his application for admission would have been granted. Defendant asserts that he was a legal permanent resident and had no criminal history; and that his mother and sister were at the immigration hearing to provide means for his immediate departure. Defendant asserts that withdrawal of his application for admission would have avoided a deportation order and saved the government significant resources.
The Government contends that withdrawal of admission was not plausible for the Defendant at the time of his 2004 deportation because the Immigration Judge found that the Defendant knowingly assisted someone who did not have legal documents to enter the United States. The Government asks the Court to assume that the Immigration Judge had a duty to inform the Defendant of relief by withdrawal of his application for admission and the Immigration Judge did not fulfill that duty. The Government asserts that the Defendant cannot show prejudice because there were no factors relating to his inadmissibility which would support the grant of withdrawal of his application for admission.
In United States v. Cisneros-Resendiz, 2011 WL 3890766 (September 6, 2011) the Court of Appeals stated in Footnote 7: "We have never held...that withdrawal of an application for admission qualifies as an immigration 'benefit' to which 8 C.F.R. § 1240.11(a)(2)'s duty to inform applies."
APPLICABLE LAW
A predicate removal order is a necessary element of a § 1326 prosecution. Under 8 U.S.C. §1326(d), an alien criminal defendant may not challenge the validity of a removal order "unless the alien demonstrates that - (1) the alien 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 him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). The entry of a removal order is fundamentally unfair for the purposes of § 1326(d)(3) only if the removal proceeding violated the alien's due process rights and the alien suffered prejudice as a result. United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010).
8 U.S.C. § 1225(a)(4) provides that "[a]n alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and depart immediately from the United States." Under 8 C.F.R. § 1240.1(d), an Immigration Judge may grant an alien's request for withdrawal only if: (1) the alien is an arriving alien; (2) the alien demonstrates that the alien "possesses both the intent and the means to depart immediately from the United States"; and (3) the alien "establishes that factors directly relating to the issue of inadmissibility indicate that the granting of the withdrawal would be in the interest of justice." § 1240.1(d). In addition, "once the issue of inadmissibility has been resolved," an Immigration Judge should permit withdrawal only if DHS concurs in the alien's request. Id. Section 1240.1(d) essentially codified the ruling of the Board of Immigration Appeals in In Re Gutierrez, 19 I. & N. Dec. 562 (BIA 1988). In Cisneros-Resendiz, 2011 WL 3890766, the Court of Appeals explained:
Section 1240.1(d) provides in full: "An immigration judge may allow only an arriving alien to withdraw an application for admission. Once the issue of inadmissibility has been resolved, permission to withdraw an application for admission should ordinarily be granted only with the concurrence of the Service. An immigration judge shall not allow an alien to withdraw an application for admission unless the alien, in addition to demonstrating that he or she possesses both the intent and the means to depart immediately from the United States, establishes that factors directly relating to the issue of inadmissibility indicate that the granting of the withdrawal would be in the interest of justice. During the pendency of an appeal from the order of removal, permission to withdraw an application for admission must be obtained from the immigration judge or the Board." 8 C.F.R. § 1240.1(d).
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Although Gutierrez did not provide a comprehensive list of the 'factors directly relating to the issue of inadmissibility,' Gutierrez does make clear that equitable considerations such as the length of the alien's presence in the United States, the alien's employment record, the strength of the alien's family ties to the United States, the alien's U.S. citizen children and the fact that the alien has a spouse who will be eligible for citizenship in the near future, are not such factors. 19 I. & N. Dec. at 565. Rather the relevant factors are those directly relating to the grounds that Congress has identified for an alien's inadmissibility such as entry into the United States by means of fraud or conviction of specified crimes. See generally ... § 1182(a)(6)(C)(i) (stating that aliens who seek admission into the United States 'by fraud or willfully misrepresenting a material fact' are inadmissible). Thus, following the logic of Gutierrez, an IJ deciding whether to permit withdrawal would consider not equitable considerations, but would consider the reasons for the alien's inadmissibility and whether those reasons establish that it would be 'in the interest of justice to allow the alien to avoid a formal removal order. 62 Fed. Reg. at 10,313 (stating that one of the purposes of allowing withdrawal is to prevent 'aliens who may be inadvertently or unintentionally in violation of the immigration laws or regulations' from being 'subject to the harsh consequences of a formal removal order'(emphasis added)).Id. at 4.
RULING OF THE COURT
In this case, the Notice to Appear charged, in part, that the Defendant was subject to removal from the United States pursuant to "Section 212(a)(6)(E)(i) of the Immigration and Nationality Act, as amended, in that you are an alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law." ECF No. 14-3 at 8. The Immigration Judge conducted a hearing, received evidence, and heard testimony. Defendant's status as a legal permanent resident and his lack of criminal history were not factors related to the determination that the Defendant was inadmissible pursuant to Section 212(a)(6)(E)(i).
The facts and circumstances surrounding Defendant's application for admission were fully and fairly presented at the immigration hearing. Defendant was represented by counsel and testified on his behalf. The Immigration Judge found the Defendant's testimony was not credible in light of statements that the Defendant made to law enforcement at the time of his arrest and the inconsistencies in his testimony at the immigration hearing. The Immigration Judge found the Defendant "knowingly assisted someone without lawful documents to enter the United States knowing that person did not have proper legal documents." ECF No. 27 at 71. ("You went down there knowing you were going to pick up someone who was illegal...."). Defendant did not file an appeal from the order of the Immigration Judge and the Court accepts the determination of the Immigration Judge regarding the Defendant's credibility and the finding of the Immigration Judge that the Defendant was inadmissible on the grounds of "alien smuggling." Id.
The Court concludes that the Defendant's legal permanent resident status and his lack of a criminal record were not factors directly related to the charge of alien smuggling that Congress has identified as grounds for an alien's inadmissibility. See Cisneros-Resendiz, 2011 WL 3890766 at 4 ("[T]he relevant factors are those directly relating to the grounds that Congress has identified for an alien's inadmissibility such as entry into the United States by means of fraud or conviction of specified crimes."). The Immigration Judge found the Defendant's conduct was knowing, and not inadvertent or unintentional. Defendant has not identified any factors related to his admissibility on November 25, 2003 that would "establish that it would be 'in the interest of justice' to allow the alien to avoid a formal removal order." Id. quoting 8 C.F.R. § 1240.1(d). In light of the facts of this case, the Court concludes that it was not plausible that the Immigration Judge would have granted the Defendant permission to withdraw his application for admission. Defendant has not shown that his 2004 deportation was fundamentally unfair. Defendant's motion to dismiss the indictment (ECF No. 19) is denied.
IT IS HEREBY ORDERED that Defendant's motion to dismiss the indictment (ECF No. 14) is denied and Defendant's motion to dismiss the indictment (ECF No. 19) is denied.
WILLIAM Q. HAYES
United States District Judge