United States v. Ramos-Urias

348 F.Supp.3d 1030

UNITED STATES of America, Plaintiff,

v.Martin RAMOS-URIAS, Defendant.

Case No. 18-cr-00076-JSW-1

United States District Court, N.D. California.

Filed January 23, 2019

Signed January 22, 2019

Samantha Schott, U.S. Attorney's Office, Northern District of California, Oakland, CA, for Plaintiff.

Hanni Meena Fakhoury, Assistant Federal Public Defender, Oakland, CA, for Defendant.

ORDER GRANTING MOTION TO DISMISS INDICTMENT

Re: Dkt. No. 37

JEFFREY S. WHITE, United States District Judge

Now before the Court is the motion to dismiss the indictment filed by Defendant Martin Ramos-Urias. The Court has considered the parties' papers, relevant legal authority, and the record in this case, and GRANTS Mr. Ramos-Urias's motion to dismiss. The hearing for this motion, set for January 29, 2019, is HEREBY CONVERTED to a status conference. The government should be prepared to discuss its intent to appeal this Order, and the defense should be prepared to discuss whether Mr. Ramos-Urias will seek to be released.

BACKGROUND

Mr. Ramos-Urias is a Mexican citizen who came to the United States as a child. (See Dkt No. 37-1 (Declaration of Hanni Fakhoury in Support of Motion to Dismiss Indictment ("Fakhoury Decl.") ), Ex. A (Presentence Investigation Report), ¶¶ 40, 41.)¹ Mr. Ramos-Urias has stated he was granted lawful permanent resident status, but he cannot recall when. (Id. ¶ 41.) In 2003, Mr. Ramos-Urias was arrested after police officers recovered twenty grams of methamphetamine and other drug paraphernalia from his vehicle. (Id. ¶ 30.) In 2004, he was sentenced to five years of probation after spending one day in jail. (Id. ) In June of 2005, police found methamphetamine and drug paraphernalia in Mr. Ramos-Urias's car and a firearm and additional drug paraphernalia in his house. (Id. ¶ 31.) His probation was revoked, and he was sentenced to serve sixteen months in state prison. (Id. ¶¶ 30, 31.)

On May 31, 2006, while Mr. Ramos-Urias was in the custody of Immigration and Customs Enforcement ("ICE") officials, he was served a putative notice to appear ("NTA"), alleging he was removable for having committed an aggravated felony. (Fakhoury Decl., Ex. C (Notice to Appear); Declaration of Samantha Schott ("Schott Decl."), Ex. 1.) The NTA specified the removal hearing would occur on a "date to be set" and a "time to be set." (Fakhoury Decl., Ex. C (Notice to Appear).) Mr. Ramos-Urias appears to have requested an immediate hearing in order to expedite a determination of his case, but indicated that he did not waive his right to a ten-day period before appearing before an immigration judge. (Id. at 2.) The certificate of service on the NTA notes that he received oral notice in English of the time and place of his hearing and of the consequences of the failure to appear at the scheduled hearing. (Id. )

On June 15, 2006, Mr. Ramos-Urias received personal service of a Notice of Hearing in Removal Proceedings from Immigration Court. (Schott Decl., Ex. 2.) This document indicated that Mr. Ramos-Urias's hearing would take place on July 10, 2006, at 8:30 a.m. (Id. ) On this scheduled date, Mr. Ramos-Urias appeared before an immigration judge in Eloy, Arizona. (Fakhoury Decl., Ex. D (July 10, 2006 Immigration Judge Order).) The immigration judge ordered him deported to Mexico. (Id. ) Mr. Ramos-Urias waived his right to appeal and was removed from the United States on July 10, 2006. (Id. ; Fakhoury Decl., Ex. E (Warrant of Removal).)

Mr. Ramon-Urias returned to the United States; in 2007 and was arrested on state charges and subsequently prosecuted for illegal re-entry. (United States v. Ramos-Urias , 07-cr-567-SBA (N.D. Cal.), Dkt. Nos. 1 (Complaint), 6 (Indictment).) He pled guilty to illegal reentry following deportation in the Northern District of California and was sentenced to fifty months in federal prison. (Id. Dkt. Nos. 16, 20.) Mr. Martin-Urias's 2006 removal order was reinstated: he completed his federal sentence and was again deported on May 27, 2011. (Fakhoury Decl., Ex. F (Notice of Intent/Decision to Reinstate Prior Order and Warrant of Removal).)

Mr. Ramos-Urias evidently re-entered the United States thereafter. He was again arrested on state charges on October 25, 2017. (Dkt. No. 1 (Indictment in Above-Captioned Case, 18-cr-76-JSW).) He pled no contest, his probation was revoked, and he was resentenced to 365 days of jail time. (Schott Decl., Ex. 4 (Alameda County Clerks Dockets and Minutes.) During this incarceration, Immigration and Customs Enforcement became aware of his presence in the United States. (Id. ) On February 22, 2018, he was charged with being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. (Id. ) On May 15, 2018, Mr. Ramos-Urias entered an open guilty plea to the indictment. (Dkt. No. 13.)

On June 21, 2018, the Supreme Court issued its decision in Pereira v. Sessions , ––– U.S. ––––, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). Mr. Ramos-Urias had not yet been sentenced in the instant matter, and on August 1, 2018, he filed a motion to withdraw his guilty plea. (Dkt. No. 17.) On October 30, 2018, this Court granted the motion to withdraw. (Dkt. No. 33.) On November 13, 2018, Mr. Ramos-Urias filed a motion to dismiss the indictment. (Dkt. No. 37.)

The Court will address other facts as necessary in its analysis.

ANALYSIS

To secure a conviction under 8 U.S.C. § 1326(a), the government must prove a defendant (i) is an alien, (ii) was previously deported, and (iii) has re-entered the United States without permission. United States v. Raya-Vaca , 771 F.3d 1195, 1201 (9th Cir. 2014) (internal quotation marks and citations omitted). Because a removal order is a predicate element of a conviction under § 1326, a defendant so charged has a due process right to collaterally attack a removal order. Id. (citing § 1326(d) ). Mr. Ramos-Urias challenges the validity of his 2006 deportation because the NTA failed to include the time and date of the hearing as required by 8 U.S.C. § 1229(a) and Pereira. He argues that, because his NTA was invalid, jurisdiction never vested with the immigration court that issued his initial 2006 removal order. For the reasons discussed below, the Court agrees with Mr. Ramos-Urias and grants his motion to dismiss.²

A. A Deficient Notice to Appear Fails to Vest Jurisdiction in Immigration Court.

Under § 1229(a), the government must serve noncitizens in removal proceedings with "written notice (in this section referred to as a ‘notice to appear’) ... specifying" several pieces of required information including "[t]he time and place at which the [removal] proceedings will be held." § 1229(a)(1)(G)(i). In Pereira , in the context of a mechanism called the "stop-time rule³ ," the Supreme Court examined this precise statutory scheme and concluded that a putative notice to appear that does not include the time and place at which the removal proceedings would be held is not a notice to appear at all. 138 S.Ct. at 2116 (" Section 1229(a)(1) does not say a ‘notice to appear’ is ‘complete’ when it specifies the time and place of the removal proceedings. Rather, it defines a ‘notice to appear’ as a ‘written notice’ that ‘specif[ies],’ at a minimum, the time and place of the removal proceedings.")

Evidently, the Department of Homeland Security's ("DHS") practice is to serve notices to appear indicating the date and time of a removal hearing is "to be determined." See id. , at 2111 ; see also Dkt. No. 41 at 10 n.1. Accordingly, Pereira has occasioned a flurry of motion practice regarding putative notices to appear. District courts are divided over the precise impact of Pereira. Some courts have concluded that the Pereira holding applies only to circumstances involving the calculation of the stop-time rule. See, e.g., United States v. Roberto Arroyo , No. 18-cr-02049-DCG, 2018 WL 6729029, at *11 (W.D. Tex. Dec. 21, 2018) ( Pereira should be narrowly applied only in stop-time rule cases). Others have applied Pereira 's holding to all putative notices to appear, regardless of whether the case at hand implicated the stop-time rule. See, e.g., United States v. Virgen-Ponce , 320 F.Supp.3d 1164 (E.D. Wash. 2018). After careful examination of Pereira , this Court concludes that the definition of "notice to appear" within this statutory scheme is not limited to the application of the stop-time rule.

There is no statutory evidence to support any argument that "notice to appear" means anything other than the explicit definition in § 1229(a). Multiple mechanisms within this statute, not just the stop-time rule, implicate or rely upon a "notice to appear" as defined by § 1229(a). See, e.g. , § 1229a(b)(5)(C)(ii) (noncitizen may seek to reopen removal proceeding to challenge order issued in absentia if he shows he did not receive a notice "in accordance with paragraph (1) or (2) of section 1229(a).") Therefore, to conclude that Pereira 's holding applies only to the application of the stop-time rule is to entertain the idea, without textual support, that a defined statutory term may carry two (or more) meanings within one statutory scheme. Interpreting and applying a statute this way defies common sense, not to mention basic tenets of statutory construction. In re Perroton , 958 F.2d 889, 893 (9th Cir. 1992) ("... in statutes that contain statutory definition sections, it is commonly understood that such definitions establish meaning where the terms appear in that same Act."). Applying Pereira in this manner is not expansive, as some courts have suggested; it is merely sensible. See Pereira , 138 S.Ct. at 2116 (time and place requirement pursuant to § 1229(a) is "definitional").

The government argues that this Court should defer to the regulations governing the immigration court's rules of procedure. See 8 U.S.C. § 1103(g)(2) (bestowing upon the Attorney General the duty to "establish such regulations ... as the Attorney General determines to be necessary for carrying out this section"). Yet, these...