Opinion
NO. CR-11-2055-RHW.
September 2, 2011
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
The Defendant is charged with being a deported alien found unlawfully in the United States in violation of 8 U.S.C. § 1326. Defendant moves for dismissal of the indictment based on the alleged invalidity of the underlying deportation order. The Court heard argument on July 19, 2011. Present for the Government was Alison Gregoire; Diane Hehir appeared on behalf of the Defendant. After considering the parties' submissions and arguments, the Court will grant the Defendant's motion and dismiss the Indictment.
I. BACKGROUND
Although Defendant was deported in 2005, the events forming the basis of this case began several years before. On June 2, 2000, Defendant received a Notice to Appear before an Immigration Judge ("Notice"). He was seventeen years old at the time. The Notice indicated that Defendant was to appear at the immigration court in Seattle, but it did not specify the time or date. Defendant maintains that he never received a supplemental Notice containing that information. The Government, however, produces a document mailed to Defendant's home address dated August 21, 2000, setting his hearing for October 18, 2000, at 2:30 p.m. This notice was addressed to Defendant only; no copy was separately mailed to Defendant's father, his custodial guardian at the time.
Defendant failed to appear at that hearing. After reviewing the record, the Immigration Judge proceeded in absentia and entered an Order of Removal. The Order indicates that a copy was sent to Defendant at his home address. On March 15, 2001, the I.N.S. sent to Defendant-again at his home — a letter detailing the arrangements for his departure from the United States. The letter was sent via registered mail, and Defendant signed the acknowledgment of receipt. In addition to scheduling his deportation for April 12, 2001, it stated: "A review of your file indicates there is no administrative relief which may be extended to you[.]" Defendant did not appear for removal.
The I.N.S. subsequently has been subsumed within the Department of Homeland Security and renamed Immigration and Customs Enforcement (ICE). For ease of reference to the exhibits, "I.N.S." is used throughout.
Defendant absconded into society until November 5, 2005, when he was found in a Sunnyside, Washington jail and finally deported. The Government again found Defendant in the United States in 2011 and the Government brought this indictment.
II. ANALYSIS
In a criminal prosecution under § 1326, due process requires a meaningful opportunity for judicial review of the underlying deportation. United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998). Because the removal order serves as a predicate element of an illegal reentry conviction under Section 1326, a defendant charged with that offense has a Fifth Amendment right to collaterally attack the removal order. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004).
To sustain a collateral attack on an underlying removal order, a defendant must establish that: (1) he exhausted all administrative remedies available to him to appeal his removal order, (2) the underlying removal 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. See 8 U.S.C. § 1326(d). If a defendant succeeds in this three part test, the indictment against him must be dismissed. United States v. Pallares-Galan, 359 F.3d 1088, 1091 (9th Cir. 2004).
Defendant contends that he is entitled to dismissal because the Order of Removal — the predicate to the Section 1326 violation charged here — is fundamentally flawed in two respects. First, Defendant maintains that he never received actual or effective notice of his hearing. Second, he argues that the I.N.S.'s statement that no administrative relief was available following the hearing in absentia was erroneous, and thus that it denied him due process.
The Court finds both of Defendant's arguments persuasive, and it grants this motion in the alternative using both theories.
A. Sufficiency of Notice
1. Effective Notice
The Court notes, however, that it is far from certain from the record that Defendant actually received notice with a complete hearing schedule. The Government produces copies of a complete notice sent to Defendant's home, but Defendant maintains he never received it. More troubling, at Defendant's removal hearing the Immigration Judge said that "[s]ome of the notices have come back," without further explanation as to whose notices were affected. (ECF No. 39, at 3).
Defendant contends that notice also should have been sent to his father because Defendant was a minor at the time. This argument was first raised in his reply brief (after he received the supplemental notice in discovery). Defendant relies primarily on Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), which granted a petition to reopen a BIA proceeding on these grounds. The Government responds that although Defendant was a minor on the date the notice was sent, he was an adult on October 18, 2000, the date of the actual hearing.
Flores-Chavez was fifteen when the I.N.S. conducted his removal proceedings; written notice was sent to him but not his adult guardians. He did not appear and was ordered removed. The Court sought to define the specific requirement of adequate notice to alien juveniles. It started by recognizing that federal regulations require that "juveniles" defined as those under 18 years old, who are initially taken into custody by the government must be released into the custody of a guardian pending hearing on their case. 8 C.F.R. § 242.24. The Court held the plain purpose of this provision was to provide the juvenile with a resource to ensure that he would appear at the hearing.Flores-Chavez, 362 F.3d at 1156. "[J]uveniles are presumed unable to appear at immigration proceedings without the assistance of an adult." Id. at 1157.
The Court then tried to reconcile the purpose of Section 242.24 with another provision providing that service of immigration notices relating to juveniles under 14 must be made upon the custodial guardian. 8 C.F.R. § 103.5a(c)(2)(ii). TheFlores-Chavez Court rejected the Government's argument that Section 103.5a clearly permits service on juveniles alone if they are older than 14. The Court found this cutoff arbitrary: "The INS's mysterious selection with regard to notice alone of the age of fourteen as the point at which a minor no longer needs an adult's help is particularly incomprehensible. Indeed, at age fourteen, a minor could not even drive himself to a hearing that he is required to attend." Flores-Chavez, 362 F.3d at 1159. In summary, the Court held that the construction of the entire regulatory scheme and due process required service of notice to the alien, and (if he is under eighteen) to his parent or guardian as well.
Here, Defendant was seventeen on August 22, 2000, when he received the supplemental notice of his hearing. The notice is addressed only to Defendant; there is no evidence notice was sent also to Defendant's father. The Government argues that since Defendant was nearly an adult at the time of the notice — and was an adult when the hearing occurred — that the Court should disregard the rule set forth in Flores-Chavez. Indeed, Defendant was just three weeks away from turning eighteen. The Court does not find this argument persuasive, however. As stated in Flores-Chavez: "no minor alien under eighteen should be presumed responsible for understanding his rights and responsibilities in preparing for and appearing at final immigration proceedings." Id at 1157. The Court made no analysis of any of Flores-Chavez's individual characteristics, other than that he was under eighteen.
The Notice describing Defendant's legal rights and the importance of the removal hearing was sent while he was a minor. It should make no difference that Defendant was eighteen at the actual hearing where he is presumed to be unaware of the importance of that hearing. Perhaps at seventeen years, eleven months, and eleven days old, Defendant was able to understand the implications of the notice of hearing. Maybe it is even likely that he could. But the Court does not believe it is permitted, nor is there an adequate record before it, to make case-by-case assessments of an individual's capacity for understanding their legal rights. The I.N.S.'s own regulations create a bright line rule that individuals older than eighteen have such an understanding and those younger do not. See id.
Alternatively, the Government argues that Defendant's father was served because he and Defendant resided at the same residence, that to which the notice was sent. The Government tries to distinguish this situation from that in Flores-Chavez where the record did not "specify precisely to whom Flores was released." Id. at 1154, n. 2. This argument assumes that Defendant's father would open mail addressed to his teenaged son. In any event, the Government must prove "by clear, unequivocal, and convincing evidence that written notice was so provided" to the alien. 8 U.S.C. § 1229a(b)(5)(A). After Flores-Chavez, this notice would include that to his guardian. Other than the Government's assumption that Defendant's father would read his son's individually-addressed mail, it offers no additional evidence that the father received notice of the hearing.
Because no notice was sent to his father, Defendant's underlying in absentia removal violated due process underFlores-Chavez. This is sufficient cause for the Court to dismiss the Indictment.
B. Erroneous Information about Available Administrative Relief
In addition to attacking notice, Defendant makes a second claim for dismissal. The letter scheduling Defendant's departure (sent via registered mail and received by Defendant) states that Defendant is entitled to no administrative relief and must report for deportation. Defendant contends this statement is erroneous because he could have applied to reopen the proceedings and choose voluntary departure. He argues that this amounts to a due process violation.
Defendant relies on United States v. Arias-Ordonez, a Ninth Circuit case with remarkably similar facts. 597 F.3d 972 (9th Cir. 2010). An immigration judge ordered Arias-Ordonez removed in absentia after he did not appear for his hearing. His initial Notice of Appearance did not contain the date or time of his hearing, and he claimed to never have received the complete notice sent a week later. Like Defendant, Arias-Ordonez received a letter shortly before his scheduled departure with verbatim language as Defendant's:
"A review of your file indicates that there is no administrative relief which may be extended to you, and it is now incumbent on this Service to enforce your departure from the United States."
He was deported, but returned to the United States and charged with illegal reentry.
The Arias-Ordonez Court found the letter to be an affirmative misstatement of the law and a due process violation. 597 F.3d at 978. "The statement that there were no administrative remedies available was not a true statement, because an alien ordered removed in absentia has a statutory right to seek to reopen his case and petition for relief." Id. at 975 (citing to 8 U.S.C. § 1229a(b)(5)(C)(ii)). The Court found that this statement affected the Arias-Ordonez's due process rights because he lacked sophistication and could not know "how to pursue administrative or judicial remedies." Here, it is difficult to believe that Defendant would do anything but take the I.N.S. at its word when it declared no relief was possible.
The Government argues that Arias-Ordonez is inapplicable because both parties agreed that the defendant never received notice of his hearing. While that is true, the holding was not contingent thereon. Id. at 976 ("We do not need to address" whether defendant received notice of the time and place of hearing.). Rather, the court relied only on the erroneous statement about the availability of administrative relief to conclude that the defendant launched a successful collateral attack under 8 U.S.C. § 1326(d). Id. at 977 (noting that the first two statutory requirements — exhaustion and deprivation of judicial review — are satisfied when the government misinforms an alien about the availability of relief).
To support dismissal of an indictment, a due process violation must prejudice Defendant. Ubaldo-Figueroa, 364 F.3d at 1048. To demonstrate prejudice, Defendant needs only show that he had plausible grounds for relief. United States v. Lopez-Velasquez, 568 F.3d 1139, 1145 (9th Cir. 2009). Here, as in Adrias-Ordonez, Defendant could have voluntarily departed in lieu of deportation under 8 U.S.C. § 1229c. Defendant was not an aggravated felon and had not previously availed himself of voluntary departure. He declares that he would have left voluntarily if allowed. This is sufficient to show prejudice. Id. at 978.
The Government does not contest that Defendant was eligible for voluntary departure. Instead, it argues that his petition to reopen the proceedings would fail because he could not demonstrate that he lacked actual notice of his hearing. Regardless of whether this is true, Defendant was told authoritatively that he could not even try. He is not required to show that relief would be certain to flow from his efforts,United States v. Muro-Inclan, 249 F.3d 1180, 1184 (9th Cir. 2001), rather he need only demonstrate that relief is plausible. The Court finds he does that here.
Accordingly, IT IS HEREBY ORDERED:
1. The Defendant's Motion to Dismiss (ECF No. 34) is GRANTED.
2. The above-captioned cased is DISMISSED with prejudice. IT IS SO ORDERED. The District Court Executive is directed to enter this order, provide copies to counsel and the U.S. Marshal, and close the file.