Opinion
Case No.: 3:21-cr-393-CAB
2021-07-07
UNITED STATES of America, Plaintiff, v. Cesar TAMAYO-RAMOS, Defendant.
Deborah Bercovitch, Special Assistant U.S. Attorney, and Mark R. Rehe, Assistant U.S. Attorney, Office of the U.S. Attorney, San Diego, CA, for Plaintiff. Theodore J. Torres, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.
Deborah Bercovitch, Special Assistant U.S. Attorney, and Mark R. Rehe, Assistant U.S. Attorney, Office of the U.S. Attorney, San Diego, CA, for Plaintiff.
Theodore J. Torres, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant.
ORDER DENYING MOTION TO DISMISS PURSUANT TO 8 U.S.C. § 1326(d)
Cathy Ann Bencivengo, United States District Judge
Before the Court is defendant Cesar Tamayo-Ramos’ motion pursuant to 8 U.S.C. § 1326(d) to dismiss the information charging him with a violation of 8 U.S.C. § 1326(a) and (b)(1), Attempted Reentry of a Removed Alien. [Doc. No. 22.] Tamayo was arrested on January 31, 2021 at the San Ysidro Port of Entry when he allegedly attempted to enter the United States by running on foot through a vehicle inspection lane while ignoring the orders of Border Patrol Agents to stop. [Doc. No. 1; Doc. No. 22-2 at 24-26. ] Tamayo, a Mexican citizen, had previously been removed on July 27, 2010. [Doc. No. 36, at 23.]
Document numbers and page references are to those assigned by CM/ECF for the docket entry.
A lawful prior order of removal is an element of the offense of illegal reentry under 8 U.S.C. § 1326. United States v. Mendoza-Lopez , 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). Tamayo was removed in 2010 following an Administrative Removal Proceeding based in part on the determination that he had been convicted of an aggravated felony. [Doc. No. 22-2, at 15-17, 19.] Tamayo collaterally attacks the validity of this prior order of removal arguing his 1999 Colorado conviction for First Degree Sexual Assault did not qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43)(A) and he was not removable as charged, making the order fundamentally unfair. He therefore argues that his prior removal was unlawful and the information must be dismissed pursuant to 8 U.S.C. § 1326(d).
A. Tamayo's Removal History
Tamayo, a citizen of Mexico, entered the United States as a teenager in 1998 without inspection to seek employment. [Doc. No. 22-2 at 4.] Within months he was arrested and charged with multiple counts of sexual assault, attempted sexual assault, and burglary. [Doc. No. 36, at 4-11.] On May 12, 1999, Tamayo entered a guilty plea to First Degree Sexual Assault, Attempted Sexual Assault on a Child, and Attempted Second Degree Sexual Assault, and was sentenced to 15 years of custody. [Id. , at 12-18.]
While in custody, Tamayo was served with a Notice of Intent to Issue a Final Administrative Removal Order pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The notice informed him that he was subject to administrative removal proceedings as he was not a citizen or national of the United States nor had been lawfully admitted for permanent residence, he entered in or about February 1998 without inspection, and had been convicted of an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(A). [Doc. No. 22-2, at 15-17.]
Tamayo was interviewed by Immigration Enforcement agent Robert H. Coultrip on July 23, 2010. [Doc. No. 31-1, at 2-4, Doc. No. 35.] Agent Coultrip declares that he explained the allegations and charges contained in the notice to Tamayo, including Tamayo's right to obtain counsel at his own expense, rebut the charges, and petition for review of the order of removal. [Doc. No. 35.] Tamayo signed the notice acknowledging receipt of the notice of removal, admitting the allegations and charges, and waiving his right to apply for judicial review of the order. [Doc. No. 22-2 at 16.] In support of his present motion, Tamayo declares that although he signed the form waiving his rights to appeal, he was not advised that he could challenge his deportation or that his conviction was an aggravated felony. [Doc. No. 22-2, at 4.] The Final Administrative Removal Order was entered finding Tamayo removable as charged. [Doc. No. 22-2, at 19.] He was removed to Mexico on July 27, 2010. [Doc. No. 36, at 23.]
The explanations and advisals were provided in English. Tamayo has not claimed that he did not understand English or that he could not read the English-language forms. The declaration he submitted in support of the present motion is in English indicating he can read and write in English.
B. Procedural Requirements for a Collateral Attack
A defendant may challenge the validity of a prior order of removal pursuant to 8 U.S.C. 1326(d). To do so the alien must demonstrate that (1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceeding 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).
Defendants charged with unlawful entry may not challenge their underlying removal orders unless they demonstrate that all three conditions are met. A court may not excuse a failure to exhaust. United States v. Refugio Palomar-Santiago , 593 U.S. ––––, 141 S.Ct. 1615, 1620–21, 209 L.Ed.2d 703 (2021). The defendant must demonstrate that he met the mandatory procedural requirements of § 1326(d).
Tamayo argues that the decision in Palomar-Santiago is limited to removal orders issued by an immigration judge in deportation hearings and is not applicable to administrative orders of removal issued by immigration agents, which he contends do not effectively provide for administrative or judicial review. The statute addresses the requirements for collateral attack on a prior order of removal, regardless of whether it was issued by a judge as was the case in Palomar-Santiago , or a deciding officer of the Department of Homeland Security as is the case here. Tamayo's notice of removal informed him that he was charged with committing an aggravated felony and that he had the opportunity to contest the charge by judicial review.
The government has provided evidence that Tamayo was informed that he had the right to apply for judicial review of his order of deportation and that he waived that right. [Doc. No. 35, Doc. No. 22-2, at 16.] Tamayo was charged, in part, with being deportable because he had been convicted of an aggravated felony. The notice informed him that he could petition for review of the order. Tamayo claims he was not informed that he could appeal his order of deportation, but he has not claimed that he did not have the opportunity or ability to read the notice he signed. [Doc. No. 22-2, at 4.] Tamayo also argues that the notice effectively deprived him of judicial review as it enumerates the grounds upon which an alien is informed that he can contest his order of deportation and it does not include a ground that the charge described in the notice is erroneous. [Id. , at 16.]
Tamayo's notice of deportation states that it is based on the determination that his prior conviction was an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(A). Tamayo had the opportunity to seek judicial review of that determination and to challenge the merits of the officer's conclusion. That he may not have recognized the substantive basis upon which he now seeks to challenge his final order of deportation did not make appellate review unavailable when he waived it. Review of removal orders exists so that noncitizens can challenge the substance of the order of removal. Palomar-Santiago , 141 S.Ct. at 1621. Having waived his right to seek judicial review, Tamayo cannot now collaterally attack his 2010 order of deportation.
C. Tamayo's Conviction for First Degree Sexual Assault Qualified as an Aggravated Felony
Nevertheless, assuming that Tamayo's waiver of judicial review does not bar his collateral attack or that his waiver was not considered and intelligent, Tamayo has not established that his order of removal was fundamentally unfair.
Any alien in and admitted to the United States shall be removed if the alien is convicted of an aggravated felony after admission. 8 U.S.C. § 1227(a)(2)(A)(iii). Rape is a designated aggravated felony under the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1101(a)(43). The term "rape," however, was not defined by the INA when it was added to the act. The Board of Immigration Appeals ("BIA") therefore defined the term according to its ordinary, contemporary meaning in 1996 when rape was added to the INA's enumerated statutory aggravated felonies. Matter of David Paul Keeley , 27 I. & N. Dec. 146 (BIA 2017). After reviewing Federal law and the laws of all 50 States and the District of Columbia in 1996, the BIA concluded that contemporary rape was synonymous with the newly denominated crimes of sexual assault, sexual battery, and criminal sexual conduct. Id. at 150. Recognizing that "the essential interests protected by the law of rape are the victim's freedom of choice and immunity from unwanted intimacy," the BIA determined that the ordinary, contemporary meaning of rape encompassed more than the traditional common law definition. Id. at 153. The BIA held that the ordinary contemporary meaning of the term rape at the time of its inclusion as an aggravated felony in the INA encompassed not only acts of vaginal, anal, and oral intercourse but also digital and mechanical penetration of the vagina or anus. Id. at 154.
The Sixth Circuit reversed in Keeley v. Whitaker , 910 F.3d 878 (6th Cir. 2018), rejecting the BIA determination that the contemporary definition of rape includes digital or mechanical penetration and therefore holding that the Ohio statute at issue was overbroad. However, the Sixth Circuit's adverse determination is not binding on the application of the BIA's decision in other circuit courts of appeal. Matter of Anselmo , 20 I. & N. Dec. 25, 31 (BIA 1989).
See e.g., Black's Law Dictionary (6th ed. 1990) for the common law definition of rape as the "act of sexual intercourse committed by a man with a woman not his wife and without her consent, committed when the woman's resistance is overcome by force or fear, or under other prohibitive conditions."
1. Tamayo's 1999 Conviction
In 1999, Tamayo was convicted of First Degree Sexual Assault in violation of Colorado criminal statute CRS § 18-3-402(1)(a), (4) for "unlawfully, knowingly, feloniously inflict[ing] sexual penetration and sexual intrusion on Angelic Martinez, the victim, and causing submission of the victim to said sexual penetration and sexual intrusion through the actual application of physical force and physical violence." [Doc. 36, at 16.] The Immigration Enforcement agent determined that the prohibited conduct met the INA's definition of rape and constituted an aggravated felony.
Under Colorado law, First Degree Sexual Assault is defined as the knowing infliction of sexual penetration or sexual intrusion. CRS § 18-3-402(1)(a). The Colorado criminal code defines sexual penetration as "sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse." CRS § 18-3-401(6). The code defines sexual intrusion as "any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue, or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse." CRS§ 18-3-401(5).
Tamayo argues that the Colorado criminal statute for First Degree Sexual Assault, CRS § 18-3-402(1)(a), does not qualify as generic rape because it also criminalizes sexual intrusion. Tamayo asserts that Ninth Circuit precedent has defined generic rape to only involve sexual intercourse, which he argues is limited to vaginal or anal intercourse. Sexual intrusion, the statute's alternative conduct, involves digital or mechanical insertion into the genital or anal opening of another person, which he argues is conduct that falls "far short of intercourse." [Doc. No. 28, at 2.] Therefore, Tamayo claims that his order of removal was fundamentally unfair as the statute penalizes conduct broader than the generic definition of rape.
2. Definition of Rape in the Ninth Circuit
To determine whether a state penal code violation falls within the INA's definition of rape, courts "must define the term rape by ‘employing the ordinary, contemporary, and common meaning’ of the word and then determine whether or not the conduct prohibited by [the statute] falls within that common, everyday definition." Elmakhzoumi v. Sessions , 883 F.3d 1170, 1172 (9th Cir. 2018) (quoting Castro-Baez v. Reno , 217 F.3d 1057, 1059 (9th Cir. 2000) ).
In Castro-Baez , the Court considered conditions set forth in California's rape law, Cal. Penal Code § 261(a)(3), to determine if they met the contemporary and common meaning of overcoming a victim's resistance by force or fear or under other prohibitive conditions. Castro-Baez , 217 F.3d at 1059. The California statutory prohibition included as an enumerated circumstance that rape can be the result of a person prevented "from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused." The court held that this circumstance of "resistance" falls within the ordinary, contemporary, and common understanding of the term rape. Id. The court did not have reason to address in Castro-Baez what conduct beyond vaginal intercourse also falls within the contemporary understanding of the term rape.
In Elmakhzoumi , the court did look at the scope of conduct that constitutes the contemporary understanding of rape. The court held that California's sodomy law prohibiting nonconsensual anal intercourse came within the contemporary definition of rape, regardless of it being a separate statute from California's "rape" statute prohibiting nonconsensual vaginal intercourse. Elmakhzoumi , 883 F.3d at 1173. The court determined that the entirety of the conduct covered by statute fell within the generic definition of rape, which is inclusive of any physical sexual conduct that involves any sexual penetration. Id.
In Yanez-Saucedo , the court considered whether a defendant's prior conviction under Washington State penal code section 9A.44.060(a) for rape in the third degree, constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(A) for purposes of sentencing enhancement. United States v. Yanez-Saucedo , 295 F.3d 991 (9th Cir. 2002). The Washington State penal code section defines rape as "sexual intercourse with another person where the victim did not consent to sexual intercourse with the perpetrator." RCW 9A.44.060(1)(a). The code defines "sexual intercourse" as (a) "its ordinary meaning and occurs upon penetration, however slight;" (b) "any penetration of the vagina or anus however slight, by an object when committed on one person by another;" or (c) "any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another." RCW 9A.44.010 (1)(a-c). These statutory definitions of sexual intercourse, which correspond to the BIA's determination of the contemporary definition of rape set forth in Keeley , were implicitly approved by the court in its decision finding that RCW 9A.44.060 qualified as an aggravated felony. The court described the contemporary meaning of rape to encompass "crime against the bodily integrity of the victim," which comports with the Black's Law Dictionary 1267 (7th ed. 1999) more contemporary definition of rape as "unlawful sexual activity with a person without consent." Yanez-Saucedo , 295 F.3d at 996.
The specific issue before the court in Yanez-Saucedo was the question of whether physical force beyond that required for penetration was needed to fit within the generic, contemporary definition of rape. Yanez-Saucedo , 295 F.3d at 996.
D. Conclusion
The Colorado criminal statute for First Degree Sexual Assault falls squarely within the BIA's definition of rape, and qualifying Tamayo's conviction under it as an aggravated felony is not contrary to Ninth Circuit authority. The BIA held that the contemporary definition of rape is neither gender-specific nor limited to acts of penile penetration. Whether labeled sexual intercourse or sexual intrusion, the Colorado statute criminalized a knowing and unwanted penetration into the genital or anal opening of another person's body. Therefore, the determination that Tamayo was deportable as an aggravated felon based on his 1999 First Degree Sexual Assault conviction was not a due process violation.
Defendant's Motion is DENIED .