United States District Court, D. Nevada
REPORT AND RECOMMENDATION (20)
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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