United States v. Castanon-Sanchez

1

UNITED STATES OF AMERICA, Plaintiff, v. ROBERTO CASTANON-SANCHEZ, Defendant.

No. 3:22-cr-00041-ART-CRD

United States District Court, D. Nevada

May 23, 2023

ORDER

ANNE R. TRAUM, UNITED STATES DISTRICT JUDGE

Defendant Castanon-Sanchez was indicted on June 23, 2022, with illegal reentry in violation of 8 U.S.C. § 1326(a) and (b). (ECF No. 1.) On November 18, 2022, Castanon-Sanchez moved to dismiss the indictment against him by collaterally attacking the underlying removal order and by challenging the illegal reentry statute on the basis that it violates the equal protection guarantee of the Fifth Amendment. On January 12 2021, and January 13, 2021, the Court held an evidentiary hearing and heard oral argument on the Motion (ECF No. 44; 45.) (the “Hearing”). Having considered the parties' briefing, sworn witness testimony, and oral argument from the parties, the Court dismisses the indictment because Castanon-Sanchez has satisfied the conditions set forth in § 1326(d) to collaterally attack his removal order and declines to address the constitutional challenge.

I. Background

Castanon-Sanchez first arrived in the United States in 1995. (ECF No. 231). In the years that followed, he got married and had five children, all of whom are U.S. citizens. Nine years after he arrived in the United States, in 2004, he was convicted of kidnapping in violation of California Penal Code § 207(a). Castanon-Sanchez represents that he is (and was) undocumented, so his California kidnapping conviction carried profound consequences in addition to his five-year prison sentence.

Castanon-Sanchez was nearing the end of his state prison sentence when on October 15, 2009, an immigration officer from the Department of Homeland Security (“DHS”) issued an arrest warrant (ECF No. 23-2) and removal/deportation warrant (ECF No. 23-3). The warrants indicated that Castanon-Sanchez would be placed in expedited removal proceedings pursuant to 8 U.S.C.§ 1228, which is a fast-tracked form of removal often called “administrative removal.” Administrative removal proceedings allow low-level immigration officers to issue removal orders without a hearing before an immigration judge when a noncitizen meets two conditions: (1) they are not a lawful permanent resident and (2) they have a conviction for an “aggravated felony.” See 8 U.S.C. § 1228(b). A few weeks later, on November 4, 2009, Immigration Enforcement Agent Xochitle Felix-Van Horn signed a Form I-851 (“Notice of Intent to Issue a Final Administrative Removal Order”) pursuant to 18 U.S.C. § 1228(b). (ECF No. 23-1.) The Form I-851 alleged that Castanon-Sanchez entered the United States without inspection on or about March 3, 1995, and that his 2004 conviction was an “aggravated felony” as defined in 8 U.S.C. § 1101(a)(43)(F). Id.

The forms reflect that Immigration Enforcement Officer Joanna Bayardo served the arrest warrant and the I-851 on Castanon-Sanchez at his place of state confinement on November 23, 2009, at 13:00. (ECF No. 23-2; 23-3.) Officer Bayardo testified at the Hearing. She had been an officer for approximately one year on the date she delivered the Notice of Intent to Castanon-Sanchez. She did not have any specific recollection of him or of that day. She testified that the time it takes to serve a Notice of Intent ranges from minutes to an hour depending on the individual. Castanon-Sanchez signed the Form I-851, according to the form, the same day at 13:00, indicating that he had received it. In other words, the Form I-851 indicates that it was presented and signed at 13:00 and that the entire interaction took less than one minute.

It appears that while Officer Bayardo is a native Spanish speaker, there is no evidence she is certified as a translator or interpreter Somebody, perhaps Officer Bayardo, checked a box indicating that they “explained and/or served this Notice of Intent to the alien in the Spanish language,” although the space for naming the interpreter is left blank. (ECF No. 23-1.) Id. Castanon-Sanchez does not concede that these options were actually translated for him and/or explained to him in a way that he could understand. Officer Bayardo had no recollection of what she did that day.

Form I-851 listed Castanon-Sanchez's options to contest the allegations and provided boxes to check if any option applied to him. He could contest deportability on three factual grounds: (1) he had U.S. citizenship; (2) he had lawful permanent residency; or (3) he was not convicted of the alleged underlying offense. Id. None of these options applied to Castanon-Sanchez, and he checked none of these boxes. Id. He could also request withholding or deferral of removal under the Convention Against Torture or under 8 U.S.C. § 1231(b)(3). Id. This also did not apply to Castanon-Sanchez, and he checked neither box. Id.

The Form I-851 did not inform Castanon-Sanchez of his right to judicial review on whether his prior conviction qualified as an aggravated felony. The Form I-851 made no mention of other, discretionary forms of relief from removal or deportation such as voluntary departure or cancellation of removal. Id. The form did not reference the option of challenging the underlying legal assumption that allegedly qualified him for administrative removal: that his kidnapping conviction was a “crime of violence” and, therefore, an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Id. Castanon-Sanchez (or someone for him) checked the only box that plausibly could have applied to him: “I do not wish to contest and/or to request withholding of removal.” Id. He (or someone for him) checked another box admitting the allegations in the Form I-851-namely, that he was a Mexican citizen who was not lawfully admitted to the United States and who had a conviction under California Penal Code § 207(a). Id. A box waiving judicial review was also checked. Id. Castanon-Sanchez signed the form, and somebody time stamped his signature at 13:00. Id.

II. Analysis

Castanon-Sanchez seeks to collaterally challenge his removal because he was subjected to an administrative removal process that denied him administrative remedies and judicial review and was premised on the inaccurate legal conclusion that he had an aggravated felony conviction. A defendant charged with illegal reentry after removal may collaterally attack the removal order under 8 U.S.C. § 1326(d). See United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987); United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014), abrogated on other grounds by Dep't of Homeland Sec. v. Thuraissigiam, 140 S.Ct. 1959 (2020). Section 1326(d) “authorizes collateral attack on three conditions: (1) that the defendant exhausted available administrative remedies; (2) that the removal proceedings ‘deprived the alien of the opportunity for judicial review'; and (3) that the removal order ‘was fundamentally unfair.'” United States v. Garcia-Santana, 774 F.3d 528, 532 (9th Cir. 2014) (quoting 8 U.S.C. § 1326(d)), abrogated on other grounds as recognized in Ho Sang Yim v. Barr, 972 F.3d 1069, 1078 n.2 (9th Cir. 2020). A defendant can establish that a removal order was fundamentally unfair by showing that (1) the defendant's due process rights were violated due to defects in the underlying deportation proceeding, and (2) the defendant suffered prejudice because of the defects. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004); see also United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998), overruled on other grounds as recognized in United States v. Ballesteros-Ruiz, 319 F.3d 1101, 1105 (9th Cir. 2003).

The Supreme Court recently clarified that a defendants must “meet all three” conditions of § 1326(d) to challenge their underlying removal. United States v. Palomar-Santiago, 141 S.Ct. 1615 (2021). The defendant in Palomar-Santiago had been removed following a conviction for felony driving under the influence (DUI). Palomar-Santiago, 141 S.Ct. at 1620. Although felony DUI was considered an aggravated felony at the time of removal, the Supreme Court subsequently held that DUI crimes did not qualify as aggravated felonies. Id.; see Leocal v. Ashcroft, 543 U.S. 1 (2004). When the defendant faced charges under § 1326, the district court and the Ninth Circuit dismissed his indictment based on Ninth Circuit case law that excused defendants “‘from proving the first two requirements' of § 1326(d) if they were ‘not convicted of an offense that made [them] removable.'” Palomar-Santiago, 141 S.Ct. at 1620 (quoting United States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017)); see also United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1130-31 (9th Cir. 2013) (collecting cases). Following Ochoa, the lower court in Palomar-Santiago reasoned that because a noncitizen who is unaware of their eligibility for relief “has had no ‘meaningful opportunity to appeal' the removal,” no administrative and judicial review was available to them. Id. See United States v. Palomar-Santiago, 813 Fed.Appx. 282, 284 (9th Cir. 2020).

The Supreme Court in Palomar-Santiago rejected the Ochoa line of reasoning and held that the defendant needed to establish all three requirements of § 1326(d) to be eligible for relief. Id. at 1621. The Ninth Circuit's application of Ochoa contravened the statute, the Court held, because it excused compliance with the statute's twin procedural requirements due to an error in the removal proceeding that could have been addressed in further administrative or judicial review. Id. Because “the substantive validity of the removal order is quite distinct from whether the noncitizen exhausted his administrative remedies . . . or was deprived of the opportunity for judicial review,” the defendant was still required to show all three...