Opinion
CR 20-054-DSF
2022-03-16
UNITED STATES of America, Plaintiff, v. Irving Cisneros MAYREN, Defendant.
Kellye Ng-McCullough, Assistant US Attorney, AUSA - Office of US Attorney, Criminal Division, Los Angeles, CA, David Ransom Friedman, Assistant US Attorney, AUSA - Office of US Attorney Criminal Appeals Section, Los Angeles, CA, for Plaintiff.
Kellye Ng-McCullough, Assistant US Attorney, AUSA - Office of US Attorney, Criminal Division, Los Angeles, CA, David Ransom Friedman, Assistant US Attorney, AUSA - Office of US Attorney Criminal Appeals Section, Los Angeles, CA, for Plaintiff.
Order GRANTING Defendant Irving Cisneros Mayren's Motion to Dismiss (Dkt. 27)
Dale S. Fischer, United States District Judge
Defendant Irving Cisneros Mayren moves to dismiss his indictment for illegal reentry on the grounds that the October 5, 2010 removal order is invalid. Dkt. 27 (Mot.). The government opposes. Dkt. 32 (Opp'n).
For the reasons set forth below, Defendant's motion is GRANTED.
I. FACTUAL BACKGROUND
A. Defendant's 2010 Voluntary Return and Removal
Defendant is a citizen of Mexico. Dkt. 27-1 (Ex. A, Form I-213) at 247-48. In or around June 2010, Defendant sustained a juvenile disposition for obstructing a police officer in violation of California Penal Code § 148(a)(1). Mot. at 12; Opp'n at 3; Dkt. 27-5 (Ex. E) at 260. Defendant voluntarily returned to Mexico on September 15, 2010. Mot. at 12; Opp'n at 3; see also Ex. E at 263.
All exhibit page numbers refer to the USAO Bates stamped numbers.
Defendant contends he also voluntarily returned to Mexico on October 10, 2007 and September 27, 2010. Mot. at 12.
On October 1, 2010, Defendant entered the United States "by walking across the desert three miles east of Naco, Arizona." Opp'n at 2. Border Patrol agents apprehended him on October 2, 2010 near Naco and he was taken to the Nogales Border Patrol Station in Arizona. See Ex. A, Form I-213 at 248. At the Nogales Border Patrol Station, Agent Javier M. Lopez asked Defendant if he wanted to make a sworn statement as part of the expedited removal proceedings. See Dkt. 27-2 (Ex. B, Form I-867 A/B); see also Ex. A, Form I-213 at 248. Form I-867 A/B was read and explained to Defendant. Ex. A, Form I-213 at 249; Ex. B, I-867. Defendant was advised: "You do not appear to be admissible or to have the required legal papers authorizing your admission to the United States[ ]" which "may result in your being denied admission and immediately returned to your home country without a hearing." Ex. B, Form I-867 A/B at 93. Defendant purportedly understood and was willing to answer questions without an attorney. Ex. A, Form I-213 at 248; see also Ex. B, Form I-867 A/B at 94.
The government contends that in the I-867 interview, Defendant admitted he (1) was a citizen of Mexico; (2) had never applied for or received any U.S. immigration documents allowing him to apply for entry, remain, or pass through the United States; (3) did not possess any valid immigrant or non-immigrant visas; and (4) was not inspected by an immigration officer when he entered the United States. See Ex. B, Form I-867 A/B at 94-95. As a result, Defendant was "processed for an Expedited Removal as Section 235(b)(1)(A)(iii) of the [Immigration and Nationality Act]." Ex. A, Form I-213 at 249.
On October 3, 2010, Defendant was issued a Notice and Order of Expedited Removal I-860. Opp'n at 2; Dkt. 27-3 (Ex. C, Form I-860). In the Notice and Order, Agent Lopez determined that Defendant was inadmissible to the United States under Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA) because he did not "then possess or present a valid immigrant visa, reentry permit, border crossing identification card, or other valid entry document, to wit, [Defendant] entered into the United States illegally with the intent to reside in the United States." Ex. C, Form I-860 at 89.
On October 5, 2010, Defendant was deported and removed from the United States. Dkt. 27-4 (Ex. D, Form I-296); Opp'n at 4. The Notice to Alien Ordered Removed/Departure Verification signed by Defendant alerted Defendant to the fact that he had "been found to be inadmissible to the United States" and he was "prohibited from entering, attempting to enter, or being in the United States for a period of 5 years from the date of [his] departure from the United States as a consequence of ... having been found inadmissible as an arriving alien in proceedings under section 235(b)(1) or 240 of the [INA]." Ex. D, Form I-296 at 91.
On November 2, 2010, Defendant attempted to reenter the United States and was apprehended by Department of Homeland Security (DHS) immigration officers. Opp'n at 4-5.; Dkt. 32-3, Ex. 1 at 83-84. Pursuant to Section 241(a)(5), DHS found him subject to removal and reinstatement of the October 5 removal order. Id.; see also Dkt. 32-3, Exs. 1 & 3. On December 29, 2010, Defendant signed the Acknowledgment and Response portion of the Notice of Intent/Decision to Reinstate Prior Order and indicated that he "did not wish to make a statement contesting" the removal and reinstatement determination. Dkt. 32-3, Ex. 3. Defendant was removed on December 29, 2010. See Dkt. 32-3, Ex. 1 at 83, Ex. 3 at 80.
B. Defendant's 2011 Return and Removal
On February 5, 2011, Defendant attempted to reenter the United States and was apprehended by DHS. Opp'n at 4-5. Pursuant to Section 241(a)(5), DHS found him subject to removal and reinstatement of the October 5 removal order. Id.; see also Dkt. 32-3 (Exs. 2 & 4). On July 28, 2011, Defendant signed the Acknowledgment and Response portion of the Notice of Intent/Decision to Reinstate Prior Order and indicated that he "did not wish to make a statement contesting" the removal and reinstatement determination. Opp'n at 5; Dkt. 32-3 (Ex. 4). Defendant was removed on July 28, 2011. Id.
C. Defendant's 2013 Conviction and Removal
At some point after July 2011, Defendant returned to the United States. On August 22, 2013, Defendant was convicted of two counts of assault with a firearm in violation of California Penal Code § 245(A)(2) with an enhancement for Commission of Offense for Benefit of Street Gang in violation of California Penal Code § 186.22(b)(1)(B). Opp'n at 5; Dkt. 32-3, (Ex. 5) at 150. Defendant was sentenced to nine years imprisonment for the first offense, and twelve months for the second offense. Opp'n at 5.
Defendant does not dispute that assault with a firearm is an aggravated felony.
After Defendant was released from prison, DHS placed him in removal proceedings based on the reinstatement of his October 5 removal order. Id.; Dkt. 32-3, (Ex. 6). On November 8, 2018, Defendant signed the Acknowledgment and Response portion of the Notice of Intent/Decision to Reinstate Prior Order and indicated that he "did not wish to make a statement contesting" the removal and reinstatement determination. Dkt. 32-3, Ex. 6. Defendant was subsequently removed on November 9, 2018. Opp'n at 5.
D. Defendant's Subsequent Return and Conviction
At some point after his removal in November 2018, Defendant reentered the United States. In December 2019, Defendant was arrested for fleeing a peace officer's motor vehicle while driving recklessly in violation of California Vehicle Code § 2800.2. Opp'n at 5-6; Dkt. 32-3 (Ex.7) at 21. On August 25, 2020, Defendant was convicted and received a three-year sentence. Opp'n at 6; Dkt. 32-3 (Ex. 7) at 21.
On January 28, 2020, a federal grand jury in the Central District of California indicted Defendant for being an illegal alien found in the United States in violation of 8 U.S.C. §§ 1326(a), (b)(2). See Dkt. 1 (Indictment); Opp'n at 6. Defendant pleaded not guilty and now moves to dismiss the Indictment pursuant to 8 U.S.C. § 1326(d). Opp'n at 6; Mot. at 2-4, 13.
II. LEGAL STANDARD
"For a defendant to be convicted of illegal reentry under 8 U.S.C. § 1326, the Government must establish that the defendant ‘left the United States under order of exclusion, deportation, or removal, and then illegally reentered.’ " United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (quoting United States v. Baraja s-Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011) ), 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 charged with illegal reentry "has a Fifth Amendment right to collaterally at tack his removal order because the removal order serves as a predicate element of his conviction." United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004).
To succeed in collaterally at tacking a removal order, a defendant must demonstrate 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 [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). "To satisfy the third prong – that the order was fundamentally unfair – the defendant bears the burden of establishing both that the ‘deportation proceeding violate[d] [his] due process rights’ and that the violation caused prejudice.’ " Raya-Vaca, 771 F.3d at 1201-02 (alteration in original) (quoting United States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir. 1994) ). The Ninth Circuit has held that if the fundamental fairness prong is met, the requirements of administrative exhaustion and judicial review are deemed met as well. See United States v. Cisneros-Rodriguez, 813 F.3d 748, 756 (9th Cir. 2015) ; see also Raya-Vaca, 771 F.3d at 1202 (holding that a defendant in an expedited removal proceeding satisfied the exhaustion and judicial review prongs because "the statute governing expedited removal proceedings afford[s] ... no opportunity for administrative or judicial review.").
III. DISCUSSION
Defendant moves to dismiss the Indictment by collaterally attacking the validity of the October 5, 2010 expedited removal order. Defendant argues his expedited removal was fundamentally unfair for two reasons. First, Defendant contends the government was not entitled to place him in expedited removal proceedings because he was not "inadmissible" under 8 U.S.C. § 1182. Mot. at 1-2. In particular, Defendant argues he was not "inadmissible" for fraud or willful misrepresentation, nor was he "applying for entry at the border." Id. at 2. Defendant further contends he was prejudiced because he was not inadmissible under § 1182 and he would have had a plausible claim for voluntary departure. Id. at 12. Second, Defendant argues t he expedited removal proceeding violated his due process rights because (1) immigration officials failed to follow regulations governing the expedited removal process and (2) immigration officials failed to advise Defendant of his eligibility for relief from removal. Id. at 2-3, 14-15; see also Ex. B, Form I-867 A/B & Ex. C, Form I-860. Defendant argues he was prejudiced because it was plausible that he could have been granted withdrawal of admission. Mot. at 15-16.
A. Whether Defendant's Removal Violated His Due Process Rights
Defendant contends his October 5 removal was fundamentally unfair because the government was not entitled to place him in expedited removal proceedings under 8 U.S.C. § 1225(b)(1)(A)(i). Mot. at 1-2, 4-10. Specifically, Defendant argues he was not inadmissible under 8 U.S.C. § 1182(a)(7) and therefore was not subject to expedited removal. Id. at 4.
Under 8 U.S.C. § 1225(b)(1)(A)(i), if an immigration officer determines that an alien arriving in the United States is inadmissible under 8 U.S.C. §§ 1182(a)(6)(C) or 1182(a)(7), the officer shall order the alien removed from the United States without further hearing or review, unless the a lien indicates either an intention to apply for asylum or a fear of persecution. The parties do not dispute that only § 1182(a)(7) is relevant in this case. Under § 1182(a)(7) "any immigrant" who "at the time of application for admission," is not in possession of valid entry documents, is inadmissible. 8 U.S.C. § 1182(a)(7)(A)(i)(I).
Defendant argues that he should not have been deemed inadmissible under § 1182(a)(7) because at the time he was apprehended, he had not submitted an application for admission, nor was he "applying for entry at the border." Mot. at 2, 7. Therefore, Defendant's inadmissibility under § 1182(a)(7) for purposes of expedited removal under § 1225 hinges on whether he lacked the requisite entry documents "at the time of application for admission."
The Ninth Circuit recently clarified the meaning of "at the time of application for admission." Torres v. Barr, 976 F.3d 918 (9th Cir. 2020) (en banc). Prior to Torres, the Ninth Circuit in Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017), determined the noncitizen was deemed to have made a "continuing application for admission" under 8 U.S.C. § 1182(a)(7) by virtue of his presence in the Commonwealth of the Northern Mariana Islands (CNMI). Minto, 854 F.3d at 624.
Torres overruled Minto and concluded that in Minto it had erroneously conflated the phrase "applicant for admission" under 8 U.S.C. § 1225(b)(1) with "application for admission." Torres, 976 F.3d at 922. In other words, in Torres the circuit determined there is a difference between "applicant" under § 1225(b)(1) and "application" under § 1182(a)(7). Following an in-depth statutory analysis, the circuit held that "the time of application for admission is the time when a noncitizen seeks permission to physically enter United States territory, regardless of whether the noncitizen is seeking entry from outside the country or inside the country at a port of entry." Torres, 976 F.3d at 924. In rejecting Minto, Torres "explained that the phrase ‘at the time’ imposes a ‘temporal requirement’ " and determined that "[g]iven that an immigrant submits an ‘application for admission’ at a distinct point in time, stretching the phrase ‘at the time of application for admission’ to refer to a period of years would push the statutory text beyond it s breaking point." Id. at 926 (citation omitted). Therefore, it is clear based on Torres that under § 1182(a)(7) a noncitizen's mere presence in the United States is insufficient to establish inadmissibility because § 1182(a)(7) pertains to noncitizens "applying for entry at the border." In addition, in analyzing the text of § 1182(a)(7)(A)(i)(I) and § 1181(a), the Ninth Circuit determined that "at the time of application for admission" "refers to the moment of applying for entry at the border." Id. at 925.
The government argues Defendant's reliance on Torres is misplaced because Torres narrowly applies to immigration circumstances in the CNMI. Opp'n at 2 (arguing that Torres "applies only to a liens entering the Northern Mariana Islands before 1997."). The Court disagrees. Critically missing from the government's opposition is any substantive discussion of footnote 13. In rejecting the government's argument that Torres "need not have been ‘physically at the border’ to have made an application for admission under § 1182(a)(7)," the Ninth Circuit determined that "no case has held that § 1225 (b)(1) allows an immigration officer to apply § 1182(a)(7) to noncitizens who are physically but unlawfully present in the United States." Torres, 976 F.3d at 929 n.13. In addition, the Ninth Circuit concluded that " § 1182(a)(7), as opposed to § 1182(a)(6)(C), may apply only to noncitizens who are "arriving in the United States." Id. (simplified). Indeed, perhaps recognizing the sweeping breadth of footnote 13's potential, after Torres was decided, the government filed a motion to amend footnote 13 requesting that the Ninth Circuit delete the aforementioned quoted language. See Dkt. 34-3 (Ex. G). That request was denied. See Dkt. 34-4 (Ex. H). The Court twice gave the government the opportunity to persuade it that it should ignore clear Ninth Circuit precedent in favor of adopting the narrower interpretation of Torres proffered by the government. However, the government could not offer an explanation for the Ninth Circuit's refusal to amend footnote 13.
As the parties well know, published decisions by the Ninth Circuit become law of the circuit, which is binding authority that district courts must follow unless overruled. See Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) ("[A] published decision of [the Ninth Circuit] constitutes binding authority which ‘must be followed unless and until overruled by a body competent to do so.’ ") (quoting Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) )).
Here, Torres unequivocally states that under § 1182(a)(7), "at the time of application for admission" "refers to the moment of applying for entry at the border" and it applies "when a noncitizen seeks permission to physically enter United States territory, regardless of whether the noncitizen is seeking entry from outside the country or inside the country at a port of entry." Torres, 976 F.3d at 924-25. Nothing in the record suggests Defendant applied for admission "at the border." Indeed, by Defendant's own admission, he did not submit an application for admission, nor did he have a pending application on his behalf. See Ex. B, Form I-867 A/B at 94 (Defendant answering "no" to the following questions: (1) whether he has "ever applied for or received any U.S. Immigration Documents allowing [him] to apply for entry, remain, or pass through the United States"; (2) whether he "currently [has] on file, or possess[es] any valid Immigrant or Non-Immigrant Visas"; and (3) whether he "claim[s] any legal status in the United States.")).
The government next argues the Court should ignore the binding Ninth Circuit precedent set forth in Torres in light of Thuraissigiam, a Supreme Court case decided before Torres that was in fact cited by t he Ninth Circuit in Torres. See Torres, 976 F.3d at 924 n.10. The government's reliance on Thuraissigiam is misplaced because there the Supreme Court in dicta merely "briefly outlin[ed] the provisions of immigration." Thuraissigiam, 140 S. Ct. at 1964. Thuraissigiam’s holding did not concern the scope of 8 U.S.C. § 1182(a)(7). In any event, "Supreme Court dicta should be given ‘due deference,’ but it is the Court's holding that is ultimately binding." Nu Image, Inc. v. Int'l All. of Theatrical Stage Emps., 893 F.3d 636, 642 (9th Cir. 2018) (quoting United States v. Montero-Camargo, 208 F.3d 1122, 1132 n .17 (9th Cir. 2000) ); see also Montero-Camargo, 208 F.3d at 1132 n.17 ("we have on occasion followed the Supreme Court's admonition that, although dictum may be followed if sufficiently persuasive, it ought not to control the judgment in a subsequent suit") (simplified). Moreover, the arguments the government makes for why Thuraissigiam is controlling, are the same arguments it made – which were implicitly rejected – to the Ninth Circuit in it s request to amend footnote 13. See Dkt. 34-4, Exs. G-H.
After giving the Supreme Court's dicta in Thuraissigiam its due deference, as the Court is required to do, the Court finds the Ninth Circuit's holding in Torres interpreting the meaning of "at t he time of application for admission" under § 1182(a)(7), squarely applies to the issue in t his case. Accordingly, under Torres, Defendant's due process rights were violated when he was placed in expedited removal proceedings because he was not inadmissible under § 1182(a)(7).
B. Whether Defendant Was Prejudiced by His Removal
Even though the Court finds that Torres is applicable to this case and therefore Defendant's due process rights were violated, the Court's analysis does not end there. Defendant must also show that he was prejudiced by his removal. See Raya-Vaca, 771 F.3d at 1201-02. Defendant argues he was prejudiced by the October 5 removal order because (1) he was not "removable as charged" under § 1182(a)(7)(i)(I) ; (2) Agent Lopez "lacked any authority to" order Defendant's rem ova l; and (3) he can "show that he had a plausible claim to voluntary departure if he had been placed before an immigration judge." Mot. at 11-12.
The Court agrees that Defendant was prejudiced by the October 5 removal order on the grounds that he was not removable as charged under § 1182(a)(7). The Ninth Circuit has repeatedly asserted that a defendant is prejudiced where he was "removed when he should not have been." See United States v. Aguilera-Rios, 769 F.3d 626, 630, 636 (9th Cir. 2014) ; see also United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006) ("[The defendant] was removed when he should not have been and clearly suffered prejudice."). This is t rue even when the defendant would have otherwise been removable. See United States v. Ochoa-Oregel, 904 F.3d 682, 685-86 (9th Cir. 2018) ("[E]ven if the government might have been able to remove [the defendant] on other grounds through a formal rem ova l proceeding, his removal on illegitimate grounds is enough to show prejudice.").
The government argues that Ochoa-Oregel, Aguilera-Rios, and Camacho-Lopez are inapplicable because each of those cases concerned a lawful permanent resident (LPR) who had a right to remain in the United States absent an erroneous removal order. See Opp'n at 19. The government primarily argues then that Defendant was not an LPR and had no legal status in the United States, and as a result he was removable and cannot show prejudice. Opp'n at 19. There are certainly distinctions between LPRs and non-LPRs, but the government does not cite, and the Court has not found, any Ninth Circuit decision that recognizes the distinction the government offers. To the contrary, each of the decisions states a general rule in broad terms that when a defendant is removed when he should not have been, his removal was fundamentally unfair. The cases cited above do not distinguish between LPRs and noncitizens.
Based on the foregoing, the Court finds the October 5 removal order was fundamentally unfair such that it violated Defendant's due process rights and prejudiced him. The Court GRANTS Defendant's motion to dismiss the indictment under 8 U.S.C. § 1326(d).
Because Defendant has carried his burden of establishing prejudice as to not being removable as charged under § 1182(a)(7), the Court declines to consider Defendant's remaining arguments showing that he was prejudiced. See Mot. at 11-12.
Because the Court grants Defendant's motion to dismiss the indictment on the grounds that his removal was fundamentally unfair because he was not inadmissible under 8 U.S.C. § 1182(a)(7), the Court need not address Defendant's alternative arguments regarding the fundamental unfairness of his October 5 removal. See Mot. at 13-18 (arguing his October 5 removal was fundamentally unfair because (1) immigration officials failed to comply with certain regulations contained in 8 C.F.R. § 235.3(b)(2)(i) and (2) he was not advised of his eligibility for relief from removal).
IV. CONCLUSION
For the foregoing reasons, Defendant's motion to dismiss the indictment is GRANTED.
IT IS SO ORDERED.