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United States v. Zuniga-Vargas

United States District Court, D. Nevada

May 1, 2019




         I. SUMMARY

         Defendant Guillermo Zuniga-Vargas seeks dismissal of the indictment for unlawful reentry under 8 U.S.C. § 1326(a) despite his three prior removals from the United States (“Motion”)[1]. (ECF No. 48 (second motion to dismiss).) Defendant argues: (1) the first and third removals are invalid under Pereira v. Sessions, 138 S.Ct. 2105 (2018)-asking the Court to disregard the Ninth Circuit's decision in Karingithi v. Whitaker, 919 F.3d 1158 (9th Cir. 2019); (2) the first and third removals are invalid for the separate reason that the immigration judge failed to advise him of his eligibility for voluntary departure; and (3) the second removal was invalid because the immigration officer did not inform him that he could withdraw his application for admission and his fundamental due process rights were violated. Defendant therefore contends his three prior removals cannot be predicate removals for the present indictment and thus the unlawful reentry charge should be dismissed. The Court will deny the Motion because Defendant has not successfully collaterally attacked the prior removals.


         Defendant's charge for unlawful reentry under 8 U.S.C. § 1326(a) is based on Defendant's prior removals from the United States in January, April, and September 2014. (ECF Nos. 10.) Defendant's first removal was pursuant to an order of removal issued by an immigration judge (“IJ”). (ECF No. 48-1.) His third removal in September 2014 was based on the reinstatement of the first removal order issued in January 2014. (ECF No. 48-2.) The second removal in April 2014 resulted from an expedited removal order issued by an immigration officer. (ECF Nos. 48-3, 48-6.)

         The Motion is Defendant's second attempt to dismiss his indictment. (See ECF No. 25 (Defendant's first motion to dismiss); ECF No. 35 (the Court's ruling regarding the first motion); ECF No. 47 (the Court's order rescinding its first order per Defendant's motion).) The government responded to the Motion and incorporated its response to the first motion (see ECF No. 54; ECF No. 28). The government's prior response is herein referred to as Incorporated Response.

         The Court heard arguments on the Motion at a hearing on April 23, 2019 (“Hearing”).


         To obtain a conviction for unlawful reentry pursuant to 8 U.S.C. § 1326(a), the government must establish that the defendant was previously, validly removed from the United States before the alleged reentry. See United States v. Cisneros-Rodriguez, 813 F.3d 748, 755 (9th Cir. 2015). A defendant charged with unlawful reentry under § 1326(a) “has a Fifth Amendment right to collaterally attack 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). A defendant may successfully challenge a predicate removal order by showing: (1) he exhausted all administrative remedies available to him to appeal his removal order; (2) the underlying removal proceedings where the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the removal order is fundamentally unfair. See 8 U.S.C. § 1326(d); see also Ubaldo-Figueroa, 364 F.3d at 1047 (noting that “the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation” in a § 1326 prosecution). The entry of a removal order is fundamentally unfair if the deportation proceedings violated the defendant's due process rights and that violation prejudices the defendant. United States v. Ortiz-Lopez, 385 F.3d 1202, 1204 (9th Cir. 2004).[2]


         A. Defendant's First and Third Removals

         Defendant's collateral challenge to his first and third removals is unsuccessful under Karingithi and because Defendant fails to establish that his first removal was invalid. The Court therefore finds that both removals are proper predicates for the instant indictment.

         1. Entitlement to Relief Under Pereira in light of Karingithi

         Defendant argues his first and third removals are invalid because the immigration court lacked jurisdiction over his first removal proceedings and his third removal merely reinstated the former removal order. (ECF No. 48 at 7, 10.) Grounding his argument in Pereira, Defendant contends the immigration court was without jurisdiction because the notice of appearance (“NTA”) upon which the immigration court's jurisdiction for Defendant's first removal proceedings was premised did not specify the date and time for Defendant's appearance. (Id. at 7; ECF No. 48-4.)[3] Specifically, the NTA here only provided that the removal hearing would occur “on a date to be set at a time to be set.” (ECF No. 48-4 at 2.)

         In Karingithi, a Ninth Circuit panel rejected the same argument Defendant makes here. There a panel of the Ninth Circuit found, contrary to Defendant's position, that Pereira does not concern the immigration court's jurisdiction and was narrowly concerned with the content of a notice to appear within the context of the stop-time rule and the requirement for continuous physical presence for cancellation of removal under 8 U.S.C. §§ 1229(a), 1229b. Karingithi, 913 F.3d at 1160-61 (citing Pereira, 138 S.Ct. at 2110, 2117). The court found that the immigration court's jurisdiction does not hinge on § 1229(a)-unlike the stop-time rule in Pereira, but instead on regulations promulgated by the Attorney General. Id. at 1160. Based on those regulations, including 8 C.F.R. §§ 1003.13, 1003.14(a) 1003.15(b) and 1003.18(b), the court found that a notice to appear not specifying the time and place of an alien's initial removal hearing vests the immigration court with jurisdiction over the removal proceedings “so long as a notice of hearing specifying this information is later sent to the alien.” Id. at 1161 (quoting and relying on In re Bermudez-Cota, 277 I. & N. Dec. 441, 447 (BIA 2018)). This Court is bound by Karingithi's holding. See, e.g., Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003)

         Based on Karingithi, it is undisputable that the immigration court had jurisdiction over Defendant's removal proceedings. While Defendant's initial NTA did not include date and time, the hearing notice Defendant subsequently received specified the time and date of his removal proceedings (ECF No. 28-3). Accordingly, the Court rejects Defendant's argument that his first and third removals were invalid for lack of jurisdiction.

         2. Voluntary Departure

         Defendant's voluntary departure arguments are also unavailing.

         There are two types of voluntary departure-pre and post-decisional voluntary departure. See, e.g., In re Arguelles-Campos, 22 I. & N. Dec. 811, 813-14 (BIA 1999); 8 U.S.C. § 1229c(a), (b)).

         8 U.S.C. § 1229c(a) provides for pre-decisional voluntary departure. Under § 1229c(a), the Attorney General may permit an alien to voluntarily depart the country “in lieu of being subject to [removal] proceedings under section 1229a . . . or prior to the completion of such proceedings, if the alien is not deportable under section 1227(a)(2)(A)(iii)[--concerning aggravated felonies--] or section 1227(a)(4)(B)[--concerning terrorist activities--] . . ..” 8 U.S.C. § 1229c(a). However, a defendant's eligibility for pre-decisional voluntary departure is clarified in 8 C.F.R. § 1240.26(b). Under § 1240.26, if an alien had not previously been granted voluntary departure, he may be afforded such relief under 8 C.F.R. § 1240.26(b). See 8 C.F.R. § 1240.26(a), (b). Section 1240.26(b) in turn provides that prior to the completion of removal proceedings an IJ may grant voluntary departure to an alien pursuant to section 240B(a) of the Act “only if the alien”:

(A) Makes such request prior to or at the master calendar hearing at which the case is initially calendared for a merits hearing;
(B) Makes no additional requests for relief (or if such requests have been made, such requests are withdrawn prior to any grant of voluntary departure pursuant to this section);
(C) Concedes removability;
(D) Waives appeal of all issues; and
(E) Has not been convicted of a crime described in section 101(a)(43) of the Act and is not deportable under section 237(a)(4).

8 C.F.R. § 1240.26(b)(1)(i)(A)-(E). Thus, under § 1240.26(b) it appears an IJ's discretion to grant voluntary departure is triggered by a defendant seeking that relief in the first instance. See also In re Arguelles-Campos, 22 I. & N. Dec. at 817 (“An alien must request section 240B(a) relief either in lieu of being subject to proceedings, or early in removal proceedings.”).

         8 U.S.C. § 1229c(b) provides for the post-decisional form of voluntary departure which is available to non-citizens at the conclusion of removal proceedings. 8 U.S.C. § 1229c(b)(1). Under § 1229c(b)(1)(B), the Attorney General may allow voluntary departure if, among other things, “the [IJ] enters an order granting voluntary departure in lieu of removal and finds that . . . the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure.” (Emphasis added.) See also 8 C.F.R. § 1240.26(c) (explaining the findings an IJ must make before exercising discretion to grant voluntary departure at the conclusion of removal proceedings-including the same good moral character requirement in 8 U.S.C. § 1229c(b)(1)(B)).

         Here, Defendant initially contends that his first and third removals were defective because (1) he was eligible for pre and post-decisional[4] voluntary departure and the immigration court failed to advise him of such eligibility and (2) he suffered prejudice. (ECF No. 48 at 25-31.) Defendant initially grounded his argument on the IJ's failure to inform him of his eligibility for voluntary departure based on information in his alien file. (Id. at 28.) However, upon reviewing Exhibit 9-a recording of Defendant's pertinent immigration proceedings-which the government attached to its Incorporated Response (ECF No. 28 at 2, 4, 10 (citing the exhibit); ECF No. 29-1 (docketing the government's Exhibit 9/manual audio filing, ID#205-412-393, 2013-12-24 08:59:03 AM)), Defendant tweaked his argument.

         First, Defendant filed a surreply[5] in which he appeared to admit that he was advised of his eligibility for voluntary departure, and instead argued that the manner in which he was advised was inadequate and amounted to an abuse of discretion. (ECF No. 60-1 at 2-3; ECF No. 29-1 at 00:09:50-00:11:06).) Defendant appeared to argue that the IJ's “presumptive decision-making was an abuse of discretion”-because it amounts to a failure to exercise discretion. (ECF No. 60-1 at 3 & n.6.) However, at the Hearing on the Motion, Defendant refined his abuse of discretion argument. At the Hearing, Defendant contended that the IJ's alleged abuse of discretion is merely a way to short-change the analysis as to whether Defendant was plausibly entitled to the relief of voluntary departure. Defendant argued that he does not concede his argument that he was not informed of his eligibility for voluntary departure-even in light of Exhibit 9-because the manner in which the IJ informed him of his eligibility amounts to procedural error. (See also ECF No. 60-1 at 3.) Defendant refers back to his arguments in the Motion (id. at n.4)-that he was eligible for pre-decisional voluntary departure relief because he had no aggravated felony convictions, nor were there terrorisms grounds to deport him (ECF No. 48 at 25-31). He contends he was eligible for post-decisional voluntary departure because he satisfies the presence and good moral character requirements. (Id.).

         In response, the government refers to its Incorporated Response (ECF No. 54 at 1-2, 4) where it merely argued that Defendant had no right to voluntary departure because hat relief is a matter resting in the discretion of the IJ and the Attorney General (ECF No. 28 at 8-10). Further, pointing to Exhibit 9, the government contends that Defendant was nonetheless afforded the opportunity to ask for voluntary departure. (Id. at 9.) The government otherwise fails to address Defendant's arguments as to whether voluntary departure relief was plausible. Maneuvering through the disjointed and insufficient ...

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