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United States v. Parra-Avalos

United States District Court, D. Nevada

May 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE GUADALUPE PARRA-AVALOS, Defendant.

          REPORT AND RECOMMENDATION

          C.W. HOFFMAN, JR., UNITED STATES MAGISTRATE JUDGE

         Presently before the court is defendant Jose Parra-Avalos's motion to dismiss the indictment (ECF No. 14), filed on April 29, 2019. The government filed a response (ECF No. 19) on May 10, 2019, and the defendant filed a reply (ECF No. 20) on May 14, 2019. Trial is set for June 3, 2019. (Order Regarding Trial (ECF No. 18).)

         I. BACKGROUND

         In 2009, the defendant, Jose Guadalupe Parra-Avalos was convicted in the State of Nevada for possession of cocaine with intent to sell in violation of Nevada Revised Statute (“N.R.S.”) § 453.337, and for sale of heroin in violation of N.R.S. § 453.321. These convictions purportedly each qualify as aggravated felony drug offenses under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), and as controlled substance offenses under Section 237(a)(2)(B)(i). See 8 U.S.C. § 1227(a)(2)(A)(iii), 1227(a)(2)(B)(i). In September 2010, Parra-Avalos was issued a Notice to Appear (“NTA”) that did not contain the date and time of his immigration hearing. He was later provided notice of the date and time of the immigration court hearing, and personally appeared at the hearing, and was deported.

         On March 27, 2019, Parra-Avalos was charged with illegal re-entry in violation of 8 U.S.C. § 1326, based on three prior removals on September 30, 2010, November 27, 2012, and February 25, 2014. (Indictment (ECF No. 1).) Parra-Avalos argues that because his 2009 convictions did not qualify as offenses sufficient to support his removal, the 2010 removal order was defective, and each subsequent removal, which were based upon a reinstatement of the 2010 removal order, was also defective. Additionally, Parra-Avalos argues that the immigration judge lacked jurisdiction to order his removal because he did not receive proper notice of the deportation hearing. Accordingly, Parra-Avalos argues that the indictment should be dismissed.

         II. ANALYSIS

         A. Standards for Reviewing Collateral Attacks on Prior Deportation Orders

         Under 8 U.S.C. § 1326(d), a defendant who collaterally attacks the validity of an underlying deportation normally 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.” If a “[d]efendant was not convicted of an offense that made him removable under the INA to begin with, he is excused from proving the first two requirements” of § 1326(d). United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017); see also United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). “With respect to § 1326(d)(3) . . . if [a] [d]efendant was removed when he should not have been, his . . . removal was fundamentally unfair, and he may not be convicted of reentry after deportation.” Ochoa, 861 F.3d at 1015 (internal quotations omitted). A defendant is excused from the first two requirements, and satisfies the third requirement, if he shows that he was not removable as charged in the notice to appear. Id.

         The 2010 notice to appear charged Parra-Avalos as being removable as an aggravated felon and as having committed offense related to controlled substances after his admission into the United States. These allegations were based on prior convictions for transport of a controlled substance, in violation of N.R.S. § 453.321, and possession of a controlled substance for sale, in violation of N.R.S. § 453.337. Parra-Avalos argues that the immigration judge committed legal error when he found that the Nevada convictions met the relevant definitions for an aggravated felony and an offense relating to controlled substances. Because of this legal error, Parra-Avalos was “removed when he should not have been” and therefore cannot be convicted of illegal reentry on the basis of this invalid removal order. Camacho-Lopez, 450 F.3d at 930.

         The government argues that, although it concedes that under current Circuit precedent, Parra-Avalos is excused from satisfying the first two requirements of the analysis, that the court should nevertheless impose the requirements of the statute as written. Specifically, the government argues that because Parra-Avalos cannot show both that he has exhausted any administrative remedies that may have been available, and that deportation proceedings improperly deprived him of the opportunity for judicial review, his motion should be denied. The government points to evidence indicating that Parra-Avalos participated in a hearing before the immigration judge, proceeded pro se, made admissions leading to his removal, and expressly waived his rights to appeal, and therefore he is precluded from obtaining relief under 8 U.S.C. § 1326(d).

         As discussed, Ninth Circuit precedent clearly establishes that Parra-Avalos is excused from proving the first two requirements if deportation was fundamentally unfair because the Nevada convictions did not meet the relevant definitions for an aggravated felony and an offense relating to controlled substances under INA § 237(a)(2)(B). The court next determines whether removal could be based upon the Nevada convictions.

         B. Parra-Avalos's 2009 Convictions

         INA § 237(a)(2)(A)(iii) provides that an alien is subject to removal if at any time after admission into the United States the alien is convicted of an aggravated felony. 8 U.S.C. §1227(a)(2)(A)(iii). INA § 101(a)(43)(B) defines an aggravated felony as illicit trafficking in a controlled substance (as defined in 21 U.S.C. § 802). See 8 U.S.C. § 1101(a)(43)(B). INA § 237(a)(2)(B)(i) states that an alien is also subject to removal if at any time after admission into the United States the alien is “convicted of a violation of … any law … relating to a controlled substance (as defined in [21 U.S.C. § 802]) . . . .” 8 U.S.C. §1227(a)(2)(B)(i). The parties agree that Parra-Avalos was convicted in 2009 of possessing cocaine with intent to sell in violation of N.R.S. § 453.337, and for sale of heroin in violation of N.R.S. § 453.321. Cocaine and heroin are controlled substances as defined in 21 U.S.C. § 802. Contrary to Parra-Avalos's argument, because Parra-Avalos's statutes of conviction are divisible as to drug type, the court applies the modified categorical approach and can review the documents of conviction to see that Parra-Avalos's convictions qualify as aggravated felonies and controlled substance offenses under the INA § 237(a)(2)(A)(iii) and 237(a)(2)(B)(i).

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