United States v. Castaneda-Nicolas

535 F.Supp.3d 1059

UNITED STATES of America, Plaintiff,

v.Israel CASTANEDA-NICOLAS, Defendant.

No. 1:19-CR-02052-SAB-1

United States District Court, E.D. Washington.

Signed April 21, 2021

Richard Cassidy Burson, Assistant US Attorney, U. S. Attorney's Office, Yakima, WA, for Plaintiff.

ORDER DISMISSING INDICTMENT

Stanley A. Bastian, Chief United States District Judge

Before the Court is Defendant's Motion to Dismiss, ECF No. 42. The Court heard arguments on the motion on January 6, 2021. Defendant was represented by Craig Webster and Jeremy Sporn. The Government was represented by Richard Burson. Defendant was present in the courtroom in the custody of the U.S. Marshals.

Defendant requested that the Court find his underlying removal order void and therefore dismiss the Indictment against him. The Court took the motion under advisement. Subsequent to the parties’ arguments, the Ninth Circuit decided United States v. Bastide-Hernandez , 986 F.3d 1245 (9th Cir. 2021), which addressed the jurisdictional arguments in Defendant's pending motion. Thus, the Court ordered supplemental briefing from the parties regarding the impact of Bastide-Hernandez on the arguments in the Motion to Dismiss. ECF No. 66. The Government and Defendant submitted their supplemental briefs on February 8 and 24, 2021, respectively. ECF Nos. 66, 68.

Having reviewed the briefing, the parties’ oral arguments, and the relevant case law, the Court grants Defendant's Motion to Dismiss and dismisses the Indictment in this case.

Facts

The following facts are pulled from the Indictment, ECF No. 1; Defendant's Motion to Dismiss, ECF No. 42; and the Government's Response to Defendant's Motion to Dismiss, ECF No. 53.

Defendant is charged with Illegal Reentry in violation of 8 U.S.C. § 1326. It is alleged that Defendant is a citizen and national of Mexico who has been denied admission, excluded, deported or removed from the United States on eight separate occasions: (1) on or about September 29, 2005, at Nogales, Arizona; (2) on or about March 26, 2009, at San Ysidro California; (3) on or about September 26, 2009, at Nogales, Arizona; (4) on or about February 6, 2010, at San Ysidro, California; (5) on or about October 22, 2010, at San Ysidro, California; (6) on or about October 15, 2011, at San Ysidro, California; (7) on or about February 15, 2013, at Nogales, Arizona; and (8) on or about November 15, 2016, at San Ysidro, California. Defendant was then found in the Eastern District of Washington without the express consent of the Attorney General or Secretary of the Department of Homeland Security to reapply for admission into the United States.

Defendant first came to the United States with his mother and father in 1989 or 1990, when he was approximately 18 months old. Defendant's family left Mexico after his grandfather and uncle were both murdered. Defendant is the oldest of eight children in the family. Only Defendant and his oldest sibling were born outside of the United States—all of his six other siblings and half-siblings were born and largely still reside here.

Defendant's father died in a car accident when Defendant was young. After his father's death, Defendant became involved in some minor criminal offenses. He dropped out of high school in 9th grade to work full-time in the Yakima Valley fields and support his family, alongside his mother and oldest sibling.

Defendant's first encounter with the Immigration and Nationality Service ("INS") occurred in January 2002, when Defendant was 13 years old. While Defendant was incarcerated at the Yakima Juvenile Justice Center on probation violations, INS officials personally served him with a Notice to Appear ("NTA"). Defendant was then released to INS, who in return released Defendant to his mother. But Defendant did not appear for his removal hearing and thus was ordered removed in absentia on July 2, 2002.

A few months later, in September 2002, INS once again found Defendant at the Yakima Juvenile Justice Center on probation violations. However, an INS official realized that Defendant's first NTA was invalid because, despite the regulations governing service on minors under the age of 14, INS only served the NTA on Defendant—who was 13 years old at the time—and not on Defendant's mother. Thus, INS filed a motion to dismiss the July 2002 removal order and to reopen Defendant's removal proceedings. INS then personally served Defendant, who was now 14 years old, with a new NTA on September 27, 2002. The NTA stated that Defendant was removable for being present without admission in violation of Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (codified at 8 U.S.C. § 1182(a)(6)(A)(i) ). On October 1, 2002, Defendant retained the services of an immigration attorney.

On October 18, 2002, Defendant and his attorney appeared for his removal hearing by video. The immigration judge began by noting that the parties had some off-the-record discussions regarding the case. ECF No. 53-1, Exhibit 9 at 0:43. The immigration judge also noted that Defendant's previous NTA had been defective and thus the removal proceedings had been terminated and reopened. Id. at 0:45-1:00. The immigration judge then confirmed with Defendant's counsel that Defendant was (1) waiving his notice and appeal rights; (2) admitting the factual allegations on the NTA; (3) conceding removability; (4) designating Mexico as the country of removal; and (5) only seeking relief in the form of voluntary departure. Id. at 1:01-1:24. The government's lawyer noted for the record that Defendant had a juvenile criminal record, but the immigration judge confirmed that Defendant was only 14 years old and thus granted the request for voluntary departure under safeguards. Id. at 1:30-2:20. After the hearing, the immigration judge served Defendant with the Order Granting Voluntary Departure via fax to Defendant's detention center, which informed Defendant that he would ineligible for voluntary departure for a period of 10 years. ECF No. 53-1, Exhibit 10. Defendant departed the United States on October 29, 2002.

Defendant reentered the United States on or about June 24, 2005. On July 22, 2005, INS officials found Defendant—now 17 years old—incarcerated at the Yakima Juvenile Justice Center on state charges for failing to appear, being a minor in possession of alcohol, obstructing a law enforcement officer, and use of drug paraphernalia. On or around this same day,¹ Defendant was given a notice informing him of his right to be represented by a lawyer and his right to a hearing before an immigration judge—Defendant ticked the boxes indicating that he had read and understood the notice, but checked the box stating "[t]he subject admitted removability and requested to return to his/her country voluntarily, without a hearing." ECF No. 53-1, Exhibit 12 at 2. On July 27, 2005, Defendant's state charges were dismissed. Both INS agents and Defendant then attempted to contact Defendant's mother to see if he could be released to her custody, but neither were successful in getting in touch with her.

Despite Defendant waiving his right to a hearing, he was still served with an NTA on July 28, 2005.² ECF No. 53-1, Exhibit 13 at 2. Defendant appeared in front of the immigration judge in Seattle for his removal hearing on September 21, 2005. The immigration judge began the hearing by asking if Defendant wanted to proceed in English, rather than rely on the Spanish translator who was present and who had begun translating, which Defendant confirmed he did. ECF No. 42-2 at 0:22-0:32. The immigration judge asked Defendant whether he had the NTA, legal aid, and appeal rights forms in front of him, which Defendant also confirmed he did. Id. at 0:32-0:46. The immigration judge then informed Defendant, who was not represented by counsel, that he had the right to a lawyer and that the immigration judge would continue the removal hearing to another day if Defendant needed more time to find a lawyer. Id. at 0:46-0:54. The immigration judge asked Defendant if he wanted to find a lawyer or if he wanted to proceed by himself—in response, Defendant stated that he would like to be sent back to Mexico. Id. at 0:54-1:03. The immigration judge once again confirmed that Defendant wanted to proceed on his own before swearing Defendant in—Defendant admitted that he was a citizen of Mexico, came to the United States without permission in June 2005, was now subject to removal, and wanted to be removed to Mexico. Id. at 1:04-2:10.

The immigration judge asked the government's lawyer whether Defendant was eligible for voluntary departure, to which the lawyer responded that Defendant had already been granted voluntary departure at his removal hearing in October 2002. Id. at 2:11-2:21. Defendant himself also confirmed that he had been granted voluntary departure, but subsequently came back to the United States. Id. at 2:22-2:30. The immigration judge stated that he would not extend this privilege to Defendant again and that Defendant had to go back to Mexico. Id. at 2:31-2:35. The immigration judge told Defendant that he could appeal, but also stated that—if Defendant accepted the decision as final—he would be returned to Mexico. Id. at 2:35-2:42. The immigration judge asked Defendant if he accepted the decision as final and Defendant replied "yes." Id. at 2:42-2:46. Defendant was thus removed on September 23, 2005.

But four days later, on September 27, 2005, Defendant was found back in the United States, hiding in a riverbed along with 11 other men near Pichaco, Arizona. Defendant told immigration officials that he and several other individuals had walked through a hole in the border fence between the United States and Mexico. Defendant stated that he had agreed to pay a guide $1,500 to take him to Washington State, where Defendant planned to work as a waiter to pay off the debt. ECF No. 53-1, Exhibit 17 at 2.

Just as in July 2005, Defendant was given a notice of his rights and chose to waive his right...