United States v. Gomez

499 F.Supp.3d 680

UNITED STATES of America, Plaintiff,

v.Ken Polvo GOMEZ, Defendant.

Case No. 20-cr-00076-WHO-1

United States District Court, N.D. California.

Signed November 4, 2020

Kevin R. Rubino, US Attorney's Office, San Francisco, CA, for Plaintiff.

ORDER GRANTING MOTION TO DISMISS INDICTMENT

Re: Dkt. No. 23

William H. Orrick, United States District Judge

Ken Polvo Gomez moves to dismiss the pending indictment because the immigration court that ordered his removal to Mexico in 2018 never obtained jurisdiction to do so. For jurisdiction to vest, the regulations require that a noncitizen be provided with charging document, such as a Notice to Appear ("NTA"), that includes the address of the immigration court where the NTA will be filed. 8 C.F.R. § 1003.15(b). Gomez's initial NTA was defective because it did not include the address of the immigration court.

If the NTA does not contain the information, jurisdiction can still vest if a corrective notice specifying the information is provided. Gomez's deficient NTA was not cured by a subsequent notice that contained the omitted information and was purportedly served "c/o Custodial Officer" at his immigration detention facility. Gomez says that he never received it, some circumstantial evidence supports his testimony, and the procedure utilized by the government to establish service was not reasonably calculated to ensure that the notice would timely reach him in the normal course.

As a result, the immigration court lacked jurisdiction to remove Gomez, meaning that the government cannot establish a predicate element of the charged offense of illegal reentry following deportation in violation of 8 U.S.C. § 1326. Gomez has also met the requirements for a successful collateral attack on his removal order pursuant to 8 U.S.C. § 1326(d). Because the immigration court lacked jurisdiction to enter the removal order, Gomez's due process rights were violated and he suffered prejudice because he was removed when he should not have been. Having shown that the removal order was fundamentally unfair, Gomez need not show exhaustion of administrative remedies or that he was denied judicial review. For these reasons, Gomez's motion to dismiss the indictment is GRANTED.

BACKGROUND

I. FACTUAL BACKGROUND

A. Before Removal Proceedings

Gomez is a citizen of Mexico. In 2010, he was involved in a jewelry store heist in San Jose, California. Declaration of David Rizk in Support of Motion to Dismiss ("Rizk Decl.") [Dkt. No. 24] ¶ 9; Declaration of Jose Rosiles in Support of Opposition to Motion to Dismiss Indictment ("Rosiles Decl.") [Dkt. No. 29] Ex. 5 (court records from Santa Clara County Superior Court). A warrant was issued for his arrest, but he was not arrested for more than two years. On August 8, 2012, he was apprehended by Texas police, shortly after he reentered the United States across the Mexico border. Rosiles Decl., Ex. 3 (August 8, 2012 I-213 form). On August 9, 2012, he was served with a NTA, which set forth factual allegations against him regarding his unlawful presence in the United States. Id. , Ex. 4 (August 9, 2012 NTA).

Before the removal proceedings occurred, however, Gomez was extradited to California to face charges for the armed robbery he committed in San Jose in 2010. Rosiles Decl., Ex. 3 at 4. He was convicted in Santa Clara County Superior Court of felony second degree robbery and sentenced to six years imprisonment. Id. , Ex. 5.

B. Removal Proceedings

Gomez was brought into the Department of Homeland Security's ("DHS") custody on or around July 9, 2018, when he was transferred from the custody of the California Department of Corrections and Rehabilitation to the Imperial Regional Detention Facility in Calexico, California. Rosiles Decl. ¶ 5. On July 9, 2018, a deportation officer served Gomez with a NTA, which alleged that he entered the country illegally in violation of 8 U.S.C. § 1182(a)(6)(A)(i) and because he had been convicted of committing a crime of moral turpitude in violation of 8 U.S.C. § 1182(a)(2)(A)(i)(I). Id. , Ex. 6 (July 9, 2018 NTA). The NTA contained blank spaces for the date and time of the hearing and for the "Complete Address of Immigration Court, including Room Number, if any." Rosiles Decl., Ex. 6. It stated that the date and time were "to be set" and the address space also indicated "time and date to be set". Id.

Gomez specifically recalls receiving the NTA; his signature appears in the Certificate of Service box, confirming that he had received it. Id. ; Declaration of Ken Polvo Gomez ("Gomez Decl.") [Dkt. No. 25] ¶ 5. He requested an "immediate hearing," waiving his right to a ten-day period for retention of counsel. Rosiles Decl., Ex. 6.

On July 17, 2018, the immigration court generated a Notice of Hearing in Removal Proceedings ("NOH"), which stated that Gomez's removal hearing would take place on July 24, 2018 at 8:00 A.M. at the Imperial Regional Detention Facility at 1572 Gateway Road, Calexico, California 92231. Rosiles, Decl., Ex. 7. The Certificate of Service indicates that it was served to Gomez by mail "c/o Custodial Officer." Id. Gomez states that he never received the NOH or relevant information in advance regarding his master calendar hearing. Gomez Decl. ¶ 7. Instead, he asserts that early on the morning of July 24, 2018, he was told for the first time by security guards that his hearing would occur the same day at 8:00 A.M. Id. ¶ 8. He estimates that he learned of the hearing approximately thirty minutes before it began. Id.

Gomez appeared at the removal hearing on July 24, 2018. Rizk Decl., Ex. H at 0:00–0:20. After giving advisories to Gomez and other respondents appearing by video, the immigration judge ("IJ") found, based on Gomez's admissions, that he was removable. Id. , Ex. I at 2:22–4:40. Gomez informed the IJ that he had a fourteen-year-old child who is a United States citizen. Id. , Ex. J at 1:06. The IJ asked Gomez if he had "talked to a lawyer or legal representative about whether you have any applications you can file," to which Gomez responded that he did not. Id. , Ex. J at 3:02. The IJ then asked, "do you know what you want to be doing sir, with your case?". Gomez, who had already been in custody for two weeks, replied, "I want to be removed." Id. , Ex. J at 3:15–3:25. The IJ entered a removal order, noting that it was "upon respondent's request" and that he had waived his right to appeal. Id. , Ex. K (July 24, 2018 Removal Order). Gomez was removed the next day on July 25, 2018. Rosiles Decl., Ex. 9.

Following his removal hearing, the immigration court attempted to serve Gomez with a copy of his removal order. Rosiles Decl. ¶ 9, Ex. 10; Declaration of Rosa Colunga in Support of United States’ Opposition to Motion to Dismiss Indictment ("Colunga Decl.") ¶ 7, Ex. 2. The immigration court used the identical method of service as it used for Gomez's July 17, 2018 NOH: by mail "c/o Custodial Officer." Colunga Decl. ¶ 7, Ex. 2. This mail was marked "Received" on July 30, 2018. Id. However, because Gomez had been removed to Mexico five days earlier, the mail was undeliverable and returned to the immigration court on July 31, 2018. Id. ; Rosiles Decl., Ex. 10.

C. Today

The pending indictment alleges that Gomez was found in the United States sometime in 2019. He moved to dismiss the indictment on July 27, 2020, Defendant's Motion to Dismiss Pursuant to 8 U.S.C. § 1326(d) ("MTD") [Dkt. No. 23], because the defective NTA, which was not cured by the subsequent NOH, did not properly vest the immigration court with jurisdiction over the 2018 removal proceeding, rendering the proceedings fundamentally unfair.

LEGAL STANDARD

I. MOTION TO DISMISS AN INDICTMENT

Under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), a defendant may 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 allegations in the indictment as true and "analyz[e] whether a cognizable offense has been charged." 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.), cert. denied, 478 U.S. 1007, 106 S.Ct. 3301, 92 L.Ed.2d 715 (1986).

II. COLLATERAL ATTACK ON A DEPORTATION

"For a defendant to be convicted of illegal reentry under 8 U.S.C. § 1326, the government 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 under [ section] 1326 has a due process right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction." Id. (internal quotation marks and citation omitted).

To demonstrate that a prior deportation cannot serve as the basis for an indictment for illegal reentry, 8 U.S.C. § 1326(d) requires that a defendant "demonstrate that (1) he exhausted the administrative remedies available for seeking relief from the predicate removal order; (2) the deportation proceedings ‘improperly deprived [him] of the opportunity for judicial review’; and (3) the removal order was ‘fundamentally unfair.’ " Raya-Vaca , 771 F.3d at 1201 (quoting 8 U.S.C. § 1326(d) ) (brackets in original). "To satisfy the third prong—that the order was fundamentally unfair—the defendant bears the burden of establishing both that the deportation proceeding violated his due process rights and that the violation caused prejudice." Id. (internal quotation marks, citation, and brackets omitted).

DISCUSSION

I. IMMIGRATION COURT'S LACK OF JURISDICTION

A. Regulatory...