Opinion
CASE NO. 17-cr-00055-YGR-1
07-25-2017
UNITED STATES OF AMERICA, Plaintiff, v. GONZALO AMBRIZ, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT
Re: Dkt. No. 10
The government indicted defendant Gonzalo Ambriz on February 2, 2017 for Illegal Re-entry Following Deportation, pursuant to 8 U.S.C. section 1326. Specifically, the indictment charges that defendant had been previously "excluded, deported and removed from the United States" and then "was found in the United States, with the Attorney General of the United States and the Secretary for Homeland Security not having expressly consented to a re-application by the defendant for admission into the United States, in violation of Title 8, United States Code, Sections 1326(a) and (b)." (Dkt. No. 1 at 3-4.)
Now before the Court is defendant's motion to dismiss the indictment due to an invalid deportation. Defendant bases his motion to dismiss on his claim that the initial deportation proceedings against him in 2006 were based on three convictions that should not have qualified as aggravated felonies for the purposes of the Immigration and Nationality Act (the "INA").
Having reviewed the indictment, the papers and exhibits submitted, and the parties' arguments at the hearing on defendant's motion held on July 21, 2017, and for the reasons set forth more fully below, the Court DENIES defendant's motion.
I. BACKGROUND
Defendant is a citizen of Mexico, and was initially admitted into the United States on November 13, 1989 as a lawful permanent resident. (Dkt. No. 13 at 4-5.) On December 6, 2006, an Immigration Judge ("IJ") ordered him removed based on multiple felony convictions related to trafficking in illicit drugs. (Id. at 6.) Specifically, on September 16, 2005, defendant was convicted in Contra Costa County for possession of cocaine salt for sale, methamphetamine for sale, and marijuana for sale in violation of three California statutes. (Id. at 10-21.) On such bases, the IJ ordered defendant removed to Mexico. (Id. at 6.)
The indictment in the instance action alleges that defendant has since been apprehended and deported back to Mexico several times, including on August 24, 2010, September 1, 2010, July 26, 2011, and November 20, 2014. (Dkt. No. 1 at 3.) On or about August 7, 2016, defendant was again found in the United States, in violation of his removal order. (Id.) On February 2, 2017, a federal grand jury returned an indictment charging defendant with one count of violating 8 U.S.C. section 1326 for illegal re-entry into the United States. (Id.)
II. LEGAL FRAMEWORK
Defendant may collaterally attack the removal order under the Due Process Clause because it serves as a predicate element of his illegal re-entry offense under section 1326. See United States v. Valdavinos-Torres, 704 F.3d 679, 686 (9th Cir. 2012). To succeed in such a challenge, defendant must demonstrate: "(1) he exhausted any administrative remedies that may have been available to seek relief; (2) the deportation proceedings from which the order issued improperly denied him the opportunity for judicial review; and (3) the order was fundamentally unfair." Id. (citing 8 U.S.C. § 1326(d)). "An underlying removal order is 'fundamentally unfair' if a defendant's due process rights were violated by defects in his deportation process, and he suffered prejudice as a result." Id. (citing United States v. Reyes-Bonilla, 671 F.3d 1036, 1042-43 (9th Cir. 2012)). The defendant has the burden of demonstrating each element. See United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1126, 1130 (9th Cir. 2013).
III. DISCUSSION
Defendant contends that he satisfies all three requirements to attack his removal order collaterally. Specifically: First, the order was fundamentally unfair because the immigration judge did not ensure that defendant's waiver of counsel was "knowing and voluntary" and failed to inform him of opportunities for deportation relief, and defendant was prejudiced as a result because it was plausible that he could have avoided deportation. Second, although he did not appeal the removal order, his waiver of the appeal was involuntary and therefore does not present a bar to his collateral attack. And third, he was deprived of judicial review because his waiver of the same was "not considered or intelligent." The Court addresses each, below.
A. Fundamental Unfairness
To demonstrate that the order was fundamentally unfair, defendant must show that his due process rights were violated by defects in the deportation process and that he suffered prejudice as a result. Valdavinos-Torres, 704 F.3d at 686.
1. Due Process Violation
Defendant argues that his due process rights were violated because the IJ failed to (i) obtain a knowing and voluntary waiver of his right to counsel and (ii) inform him of opportunities for deportation relief.
With regard to his waiver of his right to counsel, defendant fails adequately to explain why his waiver was not knowing or voluntary. Rather, the record suggests otherwise. Specifically:
The Court: Did you receive a list of free legal service providers?(Dkt. No. 13 at 29-30.) Defendant fails to explain why such waiver was not knowing or voluntary.
The Defendant: Yeah.
The Court: Would you like some more time to get an attorney?
The Defendant: No.
The Court: Will you represent yourself?
The Defendant: Yes.
The Court: You understand by doing that, you give up the right to an attorney?
The Defendant: Yeah.
Defendant's concern hinges on the IJ's alleged failure to inform defendant of his opportunities for deportation relief, namely of his eligibility for cancellation of removal and voluntary departure. See United States v. Pallares-Galan, 359 F.3d 1088, 1098-99 (9th Cir. 2004) ("[T]he requirement that an IJ inform an alien of his ability to apply for relief from removal is 'mandatory,' and failure to so inform him serves to deprive him of his right to an administrative appeal and to judicial review." (citations omitted)). The government argues that because defendant had been convicted of three aggravated felony charges, he was not eligible for relief from deportation, and, therefore, the IJ need not have advised him of such relief. See id. (holding that if prior convictions were aggravated felonies for deportation purposes, "he was ineligible for discretionary relief from removal, and the IJ did not err in advising him accordingly at the hearing"). At the hearing, the colloquy between the IJ and the defendant on this issue was as follows:
The Court: Then based on what you told me, without any other evidence, I can find that all three—or all charges—all—the charges, correct, it should say. You may still contest it; you may agree it's correct. But if you agree it's correct, you're conceding removal and you could be deported. Do you want to contest the charge or do you agree it's correct?(Dkt. No. 13 at 6.) Thus, the inquiry turns on whether the underlying convictions were properly classified as "aggravated felonies." If so, the IJ acted appropriately in not advising defendant of opportunities for relief such as cancellation of removal. Because this inquiry is closely related to the issue of prejudice, the Court addresses it within such context.
The Defendant: I agree.
2. Prejudice
"To establish the requisite prejudice, [defendant] needs to show that there were 'plausible grounds' on which he could have been granted relief from removal." Valdavinos-Torres, 704 F.3d at 690 (citation omitted). "A plausible claim to relief requires some evidentiary basis on which relief could have been granted, not merely a showing that some form of immigration relief was theoretically possible." Id. (citation omitted). Defendant here claims that he could have applied for cancellation of removal or voluntary departure were he informed of such opportunities or if he had had the benefit of counsel. However, such forms of relief are unavailable to those who have been convicted of aggravated felonies. Id. (citing 8 U.S.C. § 1182, 1229c(a)(1)). Thus, the Court next turns to whether defendant's underlying convictions were properly classified as aggravated felonies for the purposes of removal.
The Ninth Circuit generally applies the categorical approach laid out in Taylor v. United States, 495 U.S. 575 (1990) in determining whether a particular offense qualifies as an "aggravated felony." Roman-Suaste v. Holder, 766 F.3d 1035, 1038 (9th Cir. 2014). "Under this approach, [courts] look 'not to the facts of the particular prior case,' but instead to whether 'the state statute defining the crime of conviction' categorically fits within the 'generic federal definition of a corresponding aggravated felony.' Id. (quoting Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)). Relevant to the instant action, an "aggravated felony" includes "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). "The Ninth Circuit has interpreted this text as providing two analytic routes through which a state drug felony may be classified as an aggravated felony: (1) if the state crime contains a 'trafficking element,' it is an aggravated felony under the 'illicit trafficking in a controlled substance' prong of § 1101(a)(43)(B); or (2) if the state offense would be punishable as a felony under federal drug laws, it is an aggravated felony under the 'including a drug trafficking crime' prong of that section." Lopez-Jacuinde v. Holder, 600 F.3d 1215, 1217 (9th Cir. 2010).
In this case, defendant was charged by way of Indictment on November 28, 2001. (Dkt. 13, Ex. 3a.) The indictment alleged: Count 1, "a violation of HEALTH AND SAFETY CODE SECTION 11351 (POSSESSING CONTROLLED SUBSTANCE FOR SALE)," in that he "did unlawfully possess for sale and purchase of sale cocaine salt, a controlled substance."; Count 2, "a violation of HEALTH AND SAFETY CODE SECTION 11378 (POSSESSING CONTROLLED SUBSTANCE FOR SALE)," in that he "did unlawfully possess for sale methamphetamine, a controlled substance."; and Count 3, "a violation of HEALTH AND SAFETY CODE SECTION 11359 (POSSESSING MARIJUANA FOR SALE)," in that he "did unlawfully possess marijuana for sale." (Id.) Defendant signed an "Advisement of Rights, Waiver and Plea Form" and therein pled "no contest to H+S 11351, H+S 11378, [and] H+S 11359." (Id., Ex. 3c.) Using a table format, the Abstract of Judgment on California Judicial Council Form CR-290 listed each count for which the plea and judgment were entered:
| 1 | HS | 11351 | POSS. CONT. SUB. FOR SALE |
| 2 | HS | 11378 | POSS. CONT. SUB. FOR SALE |
| 3 | HS | 11359 | POSS. MARIJUANA FOR SALE |
For purposes of his immigration proceedings, defendant argues that none of the convictions is properly classified as an aggravated felony. Defendant concedes, as he must, that if even one of his prior convictions qualifies as an aggravated felony, no basis for relief would exist. (Dkt. No. 18 at 4.)
Controlling Ninth Circuit authority holds that defendant's conviction under California Health & Safety Code ("CHSC") section 11359 is categorically an "aggravated felony." See Roman-Suaste, 766 F.3d at 1038-39 ("In sum, we hold that convictions for possession of marijuana for sale under CHSC § 11359 categorically qualify as aggravated felonies under the INA, 8 U.S.C. § 1101(a)(43)(B). Accordingly, the [Board of Immigration Appeals] did not err in concluding that Roman-Suaste was removable and ineligible for all forms of discretionary relief as an aggravated felon."). The Ninth Circuit compared section 11359 with the corresponding federal criminal statute at 21 U.S.C. section 841(a) and found that because possession for sale under CHSC section 11359 "necessarily comprises only possession with intent to distribute marijuana in exchange for remuneration, convictions under that provision categorically qualify as aggravated felonies." Id.; compare CHSC § 11359 (providing that "[e]very person who possesses for sale any cannabis, except otherwise provided by law" may "be punished by imprisonment pursuant to subdivision (h) of Section 1170 of the Penal Code") with 21 U.S.C. § 841(a) (providing that it "shall be unlawful for any person knowingly or intentionally—(1) to . . . possess with intent to . . . distribute . . . a controlled substance"). The Court is bound to follow controlling Ninth Circuit authority, and, therefore, finds that defendant's conviction under CHSC section 11359 for possession of marijuana for sale is categorically an aggravated felony for the purposes of the INA.
Thus, the Court finds that defendant has failed to demonstrate any prejudice or violation of his due process rights as a result of the IJ's failure to inform him of opportunities for relief from removal.
Because the Court finds that at least one of defendant's convictions constitutes an "aggravated felony" for the purposes of the INA, the Court need not address defendant's challenges with regard to his convictions under CHSC sections 11351 and 11378.
Nonetheless, and given defendant's arguments, the Court notes that in such situation the "modified categorical approach" applies to determine whether any convictions constitute an aggravated felony. Thereunder, the Court looks to certain documents to determine whether the facts proven at trial or admitted by the defendant as part of his guilty plea establish that defendant was convicted of all elements of the relevant federal generic offense. See Sanchez-Avalos v. Holder, 693 F.3d 1011, 1014-15 (9th Cir. 2012), abrogated in part on other grounds by Descamps v. United States, 133 S. Ct. 2776 (2013). "Where, as here, the abstract of judgment unambiguously specifies that Defendant pleaded guilty to a specific count, we look to the facts alleged in that count in the charging document." United States v. Torre-Jimenez, 771 F.3d 1163, 1169 (9th Cir. 2014) (presenting a criminal complaint, an abstract of judgment, and a docket sheet).
In TorreJimenez, the Ninth Circuit distinguished United States v. Vidal, 504 F.3d 1072, 1087 (9th Cir. 2007) (en banc) wherein it held that the phrase "as charged in the Information (or Indictment)" was required by noting that such was necessary only where the underlying documents are ambiguous. Id. at 1169; see also MedinaLara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014) (recognizing that such a phrase is not required but reaffirming Vidal's core requirement that "whether an underlying conviction is a predicate offense relies solely on the link between the charging papers and the abstract of judgment" and that such link "must be clear and convincing"). The Ninth Circuit in TorreJimenez further explained that it recognizes that "some think that a different rule should apply" but that circuit "precedent squarely forecloses the argument that one isolated sentence in Vidal controls." TorreJimenez, 771 F.3d at 1169; but see Cabantac v. Holder, 736 F.3d 787, 78992 (9th Cir. 2013) (dissenting from denial of rehearing en banc under analogous circumstances, outlining inconsistencies in this area of the law, and stating that if the majority of the Ninth Circuit believes that Vidal is incorrect, the "proper course is to go en banc and overrule it explicitly").
Here, the Court is presented with the indictment, plea form, and abstract of judgment but is lacking a transcript of the underlying proceedings. While it appears that the convictions here would qualify as aggravated offenses under TorreJimenez, the Court need not resolve the issue.
B. Exhaustion of Administrative Remedies
Defendant did not appeal the order of removal. In fact, during his hearing before the IJ, the IJ asked if defendant wanted "to appeal or give up the right to appeal." Defendant responded that he wanted to "[g]ive up the right." (Dkt. No. 13 at 34.) Defendant now argues that such waiver was involuntary, relying on his arguments that the IJ insufficiently apprised him of his right to counsel and his right to relief from removal, and, therefore, his appeal waiver was insufficiently considered and intelligent to comport with due process. See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (holding that exhaustion cannot bar collateral review "when the waiver of right to an administrative appeal did not comport with due process" explaining that such waiver must be "considered and intelligent"). However, as discussed above, the Court finds that the IJ did not violate defendant's due process rights, and thus, defendant's waiver bars his collateral attack. See United States v. Garza-Sanchez, 217 F.3d 806, 808 (9th Cir. 2000) (holding that defendant's waiver of right to appeal IJ decision barred collateral attack on deportation where IJ "did all that the law required"); see also United States v. Gonzalez, 429 F.3d 1252, 1256 (9th Cir. 2005) ("[A]n alien is barred from collaterally attacking the validity of an underlying deportation order 'if he validly waived the right to appeal that order' during the deportation proceedings." (internal citations omitted)).
Accordingly, the Court finds that defendant has also failed to satisfy the requirement that he exhaust his administrative remedies prior to attacking an order of removal collaterally.
C. Opportunity for Judicial Review
In his reply, defendant concedes that if his convictions qualify as aggravated felonies, the IJ properly advised him of his rights and he was not, thereby, deprived of a meaningful opportunity for judicial review. As discussed above, the Court finds that at least one of defendant's underlying convictions was properly classified as an "aggravated felony" under binding Ninth Circuit authority. Therefore, here, too, defendant fails to satisfy the requirements for collateral review.
IV. CONCLUSION
Thus, the Court finds that defendant has failed to meet any of the requirements for collaterally attacking the removal order underlying the indictment against him in the instant action. Accordingly, the Court DENIES defendant's motion to dismiss the indictment.
This Order terminates Docket Number 10.
IT IS SO ORDERED. Dated: July 25, 2017
/s/ _________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE