United States v. Rivera-Ferrer

UNITED STATES OF AMERICA, Plaintiff, v. NICOLAS RIVERA-FERRER, Defendant.

Case No. 1:15-CR-00260-EJL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

May 3, 2016

MEMORANDUM DECISION AND ORDER

The Court has before it Defendant's Motion to Dismiss Indictment (Dkt. 17). The parties have filed responsive briefing and the matter is now ripe for the Court's consideration. Having fully review the record herein, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motion will be decided on the record before this Court without oral argument.

FACTUAL AND PROCEDURAL BACKGROUND¹

Defendant Nicolas Rivera-Ferrer ("Defendant") was born in Mexico on September 10, 1969. Defendant first entered the United States in approximately 1984 as a 15 year old, and began working as a farm laborer. In 1987, Defendant applied for temporaryresidency pursuant to the Special Agricultural Workers ("SAW") program under § 210 of the Immigration and Nationality Act ("INA"). 8 U.S.C. § 1160. On August 27, 1987, Defendant was granted temporary resident status. In 1988, Defendant met and married his first wife, a United States citizen. They moved to Gooding, Idaho, and in 1990 had a daughter together. On December 1, 1990, Defendant was granted legal permanent resident ("LPR") status. Defendant and his first wife decided to divorce around 1991, and Defendant moved to Arizona to find work.

Thereafter, in 1993, while driving from Arizona to Idaho to visit his daughter, Defendant was stopped, arrested, and charged with possession of a controlled substance with intent to sell, in violation of Nevada Revised Statute § 453.337 (1993).² On February 15, 1995, Defendant pled guilty to the charge. The Nevada court sentenced Defendant to twelve years but suspended this sentence and placed him on five years of probation.

Defendant successfully transferred his probation to Idaho in order to care for his then five-year old daughter. Once he moved to Idaho, Defendant's daughter lived with him and he supported her. In June of 1995, Defendant reported to one of his probation meetings and found Immigration and Naturalization Service ("INS") officers waiting for him. Defendant was ultimately arrested and served with an affidavit to show cause, alleging his deportability based on his Nevada conviction.

Defendant retained attorney Stephen Bywater to represent him in his removal proceeding. Defendant paid Mr. Bywater approximately $1500 as a retainer, and understood that Mr. Bywater would represent him in all of his immigration matters and would pursue any relief available to allow him to remain in the United States. On February 6, 1996, Mr. Bywater represented Defendant during his deportation hearing before Immigration Judge Anna Ho ("IJ"). Mr. Bywater requested an opportunity to submit an application for suspension of deportation, but the INS attorney noted that Defendant's aggravated felony disqualified him from suspension of deportation. The IJ then set a briefing schedule for the parties on the issue of Defendant's eligibility for suspension of deportation. At no point during the hearing did the IJ reference or discuss Defendant's potential qualification for waiver under § 212(c) of the INA. Nor did Mr. Bywater ever file an EOIR I-181, the application for § 212(c) relief.³

Mr. Bywater's brief on his client's eligibility for suspension of deportation was due on March 15, 1996. Instead of filing the brief, Mr. Bywater submitted a letter to the court on March 11, 1996 stating "[u]nfortunately, due to time constraints and financial constraints, I will not be filing such a brief." (Dkt. 17-1, Ex. K at 3.) On May 28, 1996, the IJ issued a written order ruling Defendant was ineligible for suspension ofdeportation. The order did not address Defendant's eligibility for any other form of relief, and concluded by ordering Defendant deported to Mexico.

Mr. Bywater did not consult with Defendant on his decision not to file a brief and did not inform him of the IJ's adverse decision. Although he filed a timely notice of appeal to the Board of Immigration Appeals, Mr. Bywater ultimately withdrew the appeal after he failed to submit an opening brief by the deadline. The Notice of Appeal identified the IJ's denial of Defendant's eligibility for suspension of deportation as the sole issue for appeal. The Notice of Appeal did not cite § 212(c) as a potential avenue for relief. Mr. Bywater's subsequent motion to withdraw the appeal stated that, due to his conviction, Defendant was unable to qualify statutorily for the relief requested and had no further basis for the appeal. The IJ's order was thus rendered administratively final.

Mr. Bywater did not consult with Defendant prior to withdrawing the appeal, and did not advise Defendant of the results of his case. In fact, Defendant did not learn that he had lost his residency until sometime in 2000 when he called Mr. Bywater to inquire about the status of his case.⁴ Shortly after that conversation, Defendant received a letter from INS informing him that he had to leave the country. Although he had recently married his United States-citizen second wife who was pregnant with their child, Defendant reported for deportation to Mexico. After several months, Defendant's desireto be with his young family and the need to support them financially drew him back to the United States.

In 2010, Defendant was again arrested by immigration officials. His 1996 deportation order was reinstated and he was deported. Defendant again returned to the United States to be with his family. Most recently, on October 24, 2015, Defendant was located in the District of Idaho which led to the charge filed in this case. The Indictment charges the Defendant with deported alien found in the United States, in violation of 8 U.S.C. § 1326(a) and (b)(2) and states:

On or about October 24, 2015, in the District of Idaho, the defendant, NICOLAS RIVERA-FERRER, an alien, was found in the United States, to-wit: Jerome County Idaho, after having been previously removed from the United States to Mexico on or about August 17, 2010, at or near Tucson, Arizona, the said defendant having not obtained the consent of the Secretary of the Department of Homeland Security for reapplication for admission into the United States, in violation of Title 8, United States Code, Section 1326(a) and (b)(2).

(Dkt. 1).

Following his arraignment, Defendant filed the instant Motion to Dismiss Indictment collaterally attacking his underlying deportation order. (Dkt. 17.) The Motion contends the May 28, 1996 deportation order upon which this charge is based violated Defendant's due process rights. Specifically, Defendant challenges the IJ's failure to inform Defendant of his potential eligibility for relief under § 212(c), and argues Mr. Bywater was grossly ineffective in failing to file an application for § 212(c) relief or to pursue an appeal of the IJ's deportation order. Defendant also argues the IJ erred in holding that Defendant's 1995 Nevada state conviction, the basis for his removal, constituted a controlled substance conviction for federal immigration purposes. TheCourt has reviewed the materials submitted on the Motion to Dismiss and finds as follows.

DISCUSSION

1. Standard of Law

Defendant's Motion to Dismiss is brought pursuant to 8 U.S.C. § 1326(d). "Because the underlying removal order serves as a predicate element of an illegal reentry offense under § 1326, a defendant charged with that offense may collaterally attack the removal order under the due process clause." United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004); see also United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004); United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987) (finding a prior deportation order cannot serve as a predicate for a subsequent prosecution under 8 U.S.C. § 1326 when the deportation proceedings giving rise to the order were fundamentally flawed). "[U]nder 8 U.S.C. § 1326(d), a defendant may collaterally attack the underlying removal order by showing first, exhaustion of 'any administrative remedies that may have been available to seek relief against the order;' second, that 'the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review;' and third, that 'the entry of the order was fundamentally unfair.'" United States v. Ramos, 623 F.3d 672, 680 (9th Cir.2010) (quoting 8 U.S.C. § 1326(d)). An underlying removal order is fundamentally unfair if an alien's "due process rights were violated by the defects in the underlying proceeding" and if "he suffered prejudice as a result of the defects." Pallares-Galan, 359 F.3d at 1095 (citing 8 U.S.C. § 1326(d)); Ubaldo-Figueroa, 364 F.3d at 1048.

2. Challenge to the Deportation Order

Defendant challenges the validity of the underlying order of deportation because the IJ and his counsel failed to advise him of his potential eligibility for a waiver of deportation under § 212(c). (Dkt.17-1 at 7-18.) The Government counters that § 212(c) was not available to Defendant because he did not meet the requirement in § 212(c) that he have seven years of lawful domicile in the United States. (Dkt.18 at 4-7.)

A. Exhaust Administrative Remedies

The Court finds and the Government concedes the exhaustion requirement does not bar collateral review where, as here, Defendant alleges he was not properly informed that he was eligible for relief from removal. (Dkt. 18 at 5.) If true, any waiver of the right to appeal was neither "considered" nor "intelligent." See United States v. Ortiz-Lopez, 385 F.3d 1202, 1203-04 (9th Cir.2004); Ubaldo-Figueroa, 364 F.3d at 1049-50. This case instead turns on the other remaining factors of whether the underlying...