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United States v. Romero-Lobato

United States District Court, D. Nevada

April 1, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ERIC ROMERO-LOBATO, Defendant.

          ORDER

          LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

         Defendant Eric Romero-Lobato has filed a motion seeking to dismiss the indictment against him, [1] which has charged him with one count of illegal reentry by a previously deported alien. (ECF No. 40). The government responded (ECF No. 50), and defendant timely replied (ECF No. 54). For the reasons stated below, the Court will deny defendant's motion to dismiss.

         I. Factual Background and Procedural History

         Defendant, a Mexican national, has been charged by indictment with one count of illegal reentry by a previously deported alien, a violation of 8 U.S.C. §1326(a). (ECF No. 1). The indictment indicates that defendant had previously been deported on November 8, 1996; April 16, 1998; October 19, 1999; and April 15, 2002; making this his fifth alleged unlawful entry into the United States. (Id.) Defendant's motion to dismiss centers around the events leading up to the entry of his July 31, 1996 removal order and his November 8, 1996 deportation.

         According to the record, defendant unlawfully entered the United States sometime in 1986 when he was approximately seven years old. (ECF No. 40-7 at 2). He first came to the immigration authorities' attention on September 20, 1995, when officers from the Reno Police Department initiated a traffic stop on the vehicle in which he and two other individuals were traveling. (ECF No. 40-6 at 2). At the time, defendant was 15 years old. (Id.) After being stopped by the police, defendant and the two other occupants (one of whom was his brother, Jesus) fled the scene but were ultimately apprehended and arrested. (Id.) Following his arrest, defendant was charged with one count of being a minor in possession of a firearm and two counts of aiming a firearm at a person, both stemming from an incident that had occurred on August 27, 1995. (Id.; ECF No. 40-7 at 2; ECF No. 42 at 4). Various records note that at the time of his arrest, defendant was a known member and possibly the leader of a street gang known as the “Mara Villa Peewees.” (Id.; ECF No. 42 at 4). Defendant was initially placed into the custody of the Immigration and Naturalization Service (“INS”), [2] but was released into local police custody on September 21, 1995, to face his state charges. (ECF No. 40-6 at 2). INS subsequently lodged an immigration detainer on him. (Id.) While in local police custody, defendant was held at Wittenberg Juvenile Hall. (ECF No. 40-7 at 2).

         While detained at Wittenberg, defendant was personally served with an “Order to Show Cause and Notice of Hearing” (“OSC”) on September 30, 1995. (ECF No. 51-1 at 2). The document, which was in both English and Spanish, informed defendant that the government believed that he was not lawfully present in the United States in violation of Immigration and National Act (“INA”) §241(a)(1), and he therefore would be required to appear before an immigration judge. (Id. at 3). It also advised defendant of his rights and responsibilities at his master calendar hearing and the potential consequences of not attending. (Id. at 3, 5). It listed defendant's permanent address as “611 Spokane St., [unit] #C, Reno, Nevada 89507, ” and it also told defendant to notify the Office of the Immigration Judge in writing if he had any change of address or telephone number. (Id. at 2, 6). The service portion document indicates that it was read to defendant in English, but the space where defendant was supposed to place his thumbprint is blank. (Id. at 6). Instead of defendant's thumbprint, a note inside the thumbprint box reads that there was “no ink available.” (Id.) Defendant did not sign under the “certificate of service” section of the document; a note from the serving officer indicated that defendant “[did] not wish to sign” it. (Id.).

         Defendant was declared a ward of the court on January 26, 1996, and he was placed on juvenile probation the same day. (ECF No. 42 at 4). Although the reason for defendant being declared a ward of the court is not readily apparent, commentary on a 1999 presentence report[3]indicates that in 1996, defendant's family was “non-cooperative and failed to respond to efforts to locate [him] and address his delinquent behavior.” (Id.) It is not explicitly stated in the record where defendant resided following his release from juvenile hall. It appears that he returned to his mother's apartment at 611 Spokane St., because on February 28, 1996, an “Eric Lovato” signed for the delivery of a copy of his OSC, which is identical to the one that was delivered to him while he was held at Wittenberg. (ECF 51-1 at 2). Approximately a month later on March 27, INS mailed defendant notice that his master calendar hearing would be held on July 31, 1996. (ECF No. 40-14 at 2). This notice was sent to the same 611 Spokane St. address. (Id.)

         Defendant failed to appear for his July 31, 1996 master calendar hearing. (ECF No. 52-1 at 2). Because defendant failed to appear and argue his case, the immigration judge ordered him removed in absentia to Mexico. (Id.) A warrant of deportation was issued on the same day as the master calendar hearing, and it was mailed to defendant's 611 Spokane St. address on September 17, 1996. (ECF No. 52-2 at 3). A delivery receipt indicates that an “Eric Romero” signed for the delivery. (Id.) On the same day, an “Order to Report” was mailed to the defendant's 611 Spokane St. residence, informing him that he was required to report to the immigration officer on September 27, 1996, to be deported to Mexico. (ECF No. 40-16 at 2). Defendant did not show up at the scheduled date and time. Instead, he remained at large until November 4, 1996, when he was arrested for possession of stolen property and burglary of a motor vehicle. (ECF No. 42 at 4). Defendant was returned to Wittenberg Juvenile Hall, where on November 6, INS lodged an immigration detainer against him. (Id.; ECF No. 40-17 at 2). Two days later on November 8, defendant was removed to Mexico. (ECF No. 52-3 at 3). Following defendant's deportation, he subsequently illegally reentered the United States three more times in the late 1990s and early 2000s, and he was removed each time. (ECF No. 1). Defendant is currently charged with illegally reentering the United States for a fifth time and seeks to dismiss the indictment against him. (Id.)

         II. Legal Standard

         8 U.S.C. §1326(d) allows for an alien criminally charged under §1326(a) for illegal reentry to challenge the validity of the predicate removal order, but only if: (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 the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. To establish that an order of removal is fundamentally unfair, the defendant must show that defects in the proceedings violated his right to due process, and he suffered prejudice as a result of the due process violation. U.S. v. Aguilera-Rios, 769 F.3d 626 (9th Cir. 2014). Under current Ninth Circuit precedent, an alien is excused from meeting the first two requirements if he can demonstrate that he was prejudiced by a due process violation (the third requirement). U.S. v. Ochoa, 861 F.3d 1010, 1020 (9th Cir. 2017).

         III. Discussion

         Defendant's motion to dismiss seeks to collaterally attack his original July 31, 1996 removal order on two separate grounds. First, he argues that his July 31, 1996 deportation order “affirmatively misled him about his statutory right to seek to reopen and rescind the order.” (ECF No. 40 at 8). Second, he argues that neither he nor his mother (his adult guardian) were personally served with his OSC, and because service on both alien and guardian is mandated, his due process rights were violated. (Id.) The Court will address defendant's service argument first.

         A. Service of the Order to Show Cause

         Defendant first argues that his due process rights were violated when neither he nor his mother received notice of his July 31, 1996 master calendar hearing. (ECF No. 40 at 15-16). He argues that under a Ninth Circuit opinion, Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004), the INS was required to send notice to both him and his mother (his legal guardian at the time).[4] The government responds by arguing that defendant received notice not once but twice, and because he was over 14 years old at the time of the initiation of his removal proceedings, the INS was not required to send his mother notice. (ECF No. 51 at 4, 10).

         As an initial matter, the parties disagree as to what law governs the Court's analysis. Defendant argues that the immigration regulations at the time of his offense should apply because the government's proffered regulations were not adopted until 2003, whereas the defendant's proceedings took place in 1996. (ECF No. 54 at 2). On the other hand, the government cites to the modern regulations. (ECF No. 51 at 10). Defendant is correct; Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) in 1996, which made major changes to the Immigration and Nationality Act (“INA”) and substantially overhauled the nation's immigration laws. Pursuant to IIRIRA §309(c), aliens who are placed into deportation proceedings before April 1, 1997, and who have a final deportation order entered before October 30, 1996, have their cases governed under the framework prior to the enactment of the IIRIRA. See Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1183 (9th Cir. 2001) (stating that aliens who are in deportation proceedings before April 1, 1997, and who have their deportation order entered after October 30, 1996, are governed by the transitional rules). ...


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