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United States v. Gonzalez-Castro

United States District Court, D. Nevada

September 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SILVANO GONZALEZ-CASTRO, Defendant.

          REPORT AND RECOMMENDATION (20)

          NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE.

         This matter was referred to the undersigned Magistrate Judge on Defendant Silvano Gonzalez-Castro's motion to dismiss indictment. Docket No. 20. The Court has considered Defendant's motion, the United States' response, and Defendant's reply. Docket Nos. 20, 31, 34.

         I. BACKGROUND

         On May 21, 2019, a federal grand jury sitting in Las Vegas, Nevada issued an indictment charging Defendant with one count of deported alien found unlawfully in the United States, in violation of Title 8, United States Code, Section 1326. Docket No. 1. The charge alleges that Defendant reentered and remained in the United States “after having been deported and removed therefrom on or about August 19, 2004, and November 2, 2014 ...” Id. at 1.

         Defendant submits that his August 5, 2004, Notice to Appear (“NTA”), which led to his removal, was legally defective because it failed to designate an address for the Immigration Court for his removal hearing. Id. at 2, 3-4; Docket No. 20-1 at 2. Defendant submits that a subsequent notice cannot cure the omission of this information. Id. at 7-8. As a result, Defendant submits, the Immigration Judge who removed him lacked jurisdiction to do so and his removal order is therefore void. Docket No. 20 at 2, 5-6, 10-12.

         Defendant further submits that his first removal order was defective because the Immigration Judge did not inform him that he was statutorily eligible to seek relief from removal and voluntarily depart the United States, which constituted a due process violation. Id. at 2-3, 4-5, 14-15. The due process violation, Defendant submits, “deprived him of the ability to make an informed decision in accepting the final order of removal and waiving the appeal.” Id. at 3. Defendant submits that voluntary removal was plausible as he was 48 years old at the time had only one misdemeanor conviction for possession of marijuana, and appears to have had no prior immigration history; therefore, the Immigration Judge's failure to advise Defendant of his eligibility for pre-conclusion voluntary departure prejudiced him. Id. at 19-20. Defendant further submits that this due process violation invalidates both the original removal order and the reinstatement removal order and, therefore, asks the Court to dismiss the indictment against him. Id.

         Defendant additionally submits that his waiver of appeal was not knowing and intelligent. Id. at 15-18. Finally, Defendant submits that, since he is challenging the Immigration Court's subject matter jurisdiction, he does not need to exhaust his administrative remedies. Id. at 12-14. Therefore, Defendant asks the Court to dismiss the indictment against him.

         In response, the United States submits that, on August 5, 2004, Defendant was charged in United States District Court for the District of Arizona with knowingly and intentionally possessing marijuana with intent to distribute and with knowingly and intentionally possessing marijuana. Docket No. 31 at 2; see also Docket No. 31-1. The United States further submits that, on August 5, 2004, immigration officials issued Defendant an NTA charging him as an alien who had been convicted of a controlled substance offense and as an illicit trafficker of a controlled substance, all in violation of the Immigration and Nationality Act. Docket No. 31 at 2. The United States submits that, on the same date, Defendant was personally served with the NTA, which stated that the date, time, and place of the hearing were “to be set, ” and signed for receipt of it. Id. Further, the United States submits, the NTA stated that Defendant was provided oral notice in the Spanish language of the “time and place of his hearing, and the consequences of his failure to appear.” Id.

         On August 10, 2004, Defendant entered a guilty plea to count 2 of the complaint, for which he was sentenced to 18 months' probation along with a special condition that he not reenter the United States of America without permission from the Attorney General. Id. at 3. The United States submits that, on August 19, 2004, Defendant was present in Immigration Court during a proceeding in which an Immigration Judge ordered him removed from the United States and he waived his right to appeal the removal order. Id. The United States further submits that it is unclear whether the Immigration Judge advised Defendant that he was eligible to seek voluntary removal from the United States. Id. On November 2, 2014, the United States submits, Defendant was again removed from the United States pursuant to a reinstatement of the 2004 removal order. Id.

         The United States submits that the NTA “filed as a charging document in the immigration court need not contain the time or place of the proceedings.” Id. at 4. Rather, the United States submits, the rules require immigration officials to include the time, place, and date of the initial removal proceeding “where practicable” and, when this information is not in the initial notice, “the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice…of the time, place, and date of hearing.” Id. (quoting 8 C.F.R. § 1003.18(b)). The United States submits that the Immigration Judge had jurisdiction over Defendant during his removal proceedings. Id. at 7-10. The United States further submits that Defendant's challenge to the validity of the Immigration Judge's removal order does not excuse him from exhausting his administrative remedies and that he has failed to do so. Id. at 11-12. Finally, the United States submits that the Immigration Judge's authority to grant Defendant the relief of voluntary departure is discretionary and, therefore, Defendant must demonstrate “plausible grounds” that he would have been granted this relief but has failed to do so. Id. at 12-15. Accordingly, the United States asks the Court to deny Defendant's motion. Id. at 16.

         In reply, Defendant submits that the initial NTA did not vest jurisdiction in the Immigration Court because it fails to specify the address of the specific Immigration Court where it will be filed. Docket No. 34 at 3-4. See also 8 C.F.R. § 1003.14(a). Defendant further submits that the Notice of Hearing fails to cure the address deficiency because the NTA is a single document that must contain all necessary information; yet, the only address it contains is that of Defendant's residence. Id. at 2. Defendant submits that the regulation expressly requires the NTA to contain the address of the Immigration Court where it is filed and, since Defendant's does not, the Immigration Court had no jurisdiction to remove him. Id. at 3-4. Defendant further submits that the Notice of Hearing does not cure the defects of the NTA, and that it does not meet the regulatory requirements to be termed a subsequent NTA. Id. at 4-5. Additionally, Defendant submits that the lack of jurisdiction automatically invalidates the removal order; therefore, he asks the Court to dismiss his indictment. Id. at 5-6.

         II. ANALYSIS

         Federal Rule of Criminal Procedure 12(b)(3)(B)(v) allows a defendant to move to dismiss an indictment on the ground that the indictment “fail[s] to state an offense.” In considering a motion to dismiss an indictment, a court “must accept the truth of the allegations in the indictment in analyzing whether a cognizable offense has been charged. The indictment either states an offense or it does not. There is no reason to conduct an evidentiary hearing.” United States v. Boren, 278 F.3d 911, 914 (9th Cir. 2002). “In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, the district court is bound by the four corners of the indictment.” Id. A motion to dismiss an indictment can be determined before trial “if it involves questions of law rather than fact.” United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir. 1986); United States v. Jimenez, 191 F.Supp.3d 1038, 1040 (N.D.Ca. 2016). For this reason, “[g]enerally, Rule 12(b) motions are appropriate to consider ‘such matters as former jeopardy, former conviction, former acquittal, statute of limitations, immunity, [and] lack of jurisdiction.'” Shortt, 785 F.2d at 1452. A defendant moving to dismiss an indictment bears the burden of demonstrating a factual basis for the motion to dismiss. See United States v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003); United States v. Lazarevich, 147 F.3d 1061, 1065 (9th Cir. 1998).

         In order to convict a defendant of illegal reentry under 8 U.S.C. § 1326, the United States 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) (internal quotation marks and citation omitted). “A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has the right to bring a collateral attack challenging the validity of his underlying ...


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