United States v. Sam-Pena

602 F.Supp.3d 1204

UNITED STATES of America, Plaintiff,

v.Luis Alonso SAM-PENA, Defendant.

No. CR-21-00888-001-PHX-GMS

United States District Court, D. Arizona.

Signed May 5, 2022

Filed May 6, 2022

Genevieve Alexandra Ozark, Assistant US Attorney, US Attorneys Office, Phoenix, AZ, for Plaintiff.

ORDER

G. Murray Snow, Chief United States District Judge

Before the Court is Luis Alonso Sam-Pena's ("Defendant") Motion to Dismiss Indictment Pursuant to 8 U.S.C. § 1326(d) (Doc. 44). For the following reasons, the Defendant's motion is granted.

BACKGROUND

The Defendant is a Mexican national who pled guilty to kidnapping in Arizona in 2009. (Doc. 44 at 3); Ariz. Rev. Stat. § 13-1304. He was sentenced to a term of five years in the custody of the Arizona Department of Corrections ("ADC") on June 16, 2009. (Doc. 68-3 (under seal) at 2.) During his term of custody, Immigration and Customs Enforcement ("ICE") began removal proceedings against him. ICE determined his kidnapping conviction was an aggravated felony under the Immigration and Nationality Act ("INA"), and Officer Frances Garcia ("Officer Garcia") served the Defendant with a Notice of Intent to Issue a Final Administrative Removal Order ("Form I-851") on June 23, 2009. (Doc. 44-2 at 3.) According to the Defendant's Form I-851, Officer Garcia "explained and/or served" the contents of the form to him in Spanish. (Doc. 44-2 at 3.)

Among other provisions, Form I-851 advised the Defendant that he had a right to counsel and a right to seek judicial review of the removal order within thirty days. (Doc. 44-2 at 2.) The Defendant marked on Form I-851 that he did not wish to contest his removability and that he waived his rights to judicial review. (Doc. 44-2 at 3.) But the Defendant was not promptly removed due to his ongoing state incarceration. His Form I-851 was modified on April 20, 2011, when the name of the initial issuing officer was scratched out, and a new issuing officer, Darrell Woods, signed the Form I-851 anew in blue ink. (Doc. 44-2 at 2.) Days later, on April 26, 2011, ICE issued a Final Administrative Removal Order compelling the Defendant's removal to Mexico. (Doc. 44-3 at 2.) The Defendant was not served with his Final Administrative Removal Order until January 30, 2013, the date of his removal. (Doc. 44-3 at 2); (Doc. 44-4 at 3.)

The Defendant subsequently reentered the United States and was charged with Reentry of Removed Alien in violation of 8 U.S.C. § 1326(a) and (b)(1) in 2021. (Doc 26 at 1.) In the present motion, he collaterally attacks the validity of his 2013 removal and seeks dismissal of the indictment. (Doc. 44.) To resolve disputed factual issues, the Court held an evidentiary hearing on April 29, 2022.

DISCUSSION

I. Legal Standard

Under 8 U.S.C. § 1326, a defendant charged with illegal reentry after removal may collaterally attack the removal order. 8 U.S.C. § 1326(d) ; United States v. Mendoza-Lopez , 481 U.S. 828, 837–38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (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 , ––– U.S. ––––, 140 S. Ct. 1959, 207 L.Ed.2d 427 (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). The Supreme Court has recently clarified that defendants must "meet all three" conditions in order to challenge their underlying removal orders. United States v. Palomar-Santiago , ––– U.S. ––––, 141 S. Ct. 1615, 1621, 209 L.Ed.2d 703 (2021). 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).

II. Analysis

A. Palomar-Santiago

In Palomar-Santiago , the Supreme Court struck down a Ninth Circuit rule 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) ). This rule came from a line of cases holding that § 1326(d)(1) and (d)(2) were satisfied when the basis for a noncitizen's removal was an incorrect determination that they had committed an aggravated felony, and no immigration official informed the noncitizen that they were eligible for relief. See United States v. Gonzalez-Villalobos , 724 F.3d 1125, 1130–31 (9th Cir. 2013) (collecting cases). Because a noncitizen who is unaware of their eligibility for relief "has had no ‘meaningful opportunity to appeal’ the removal," the cases held that no administrative and judicial review was available to them. Id.

The defendant in Palomar-Santiago had been removed following a conviction for felony DUI. Palomar-Santiago , 141 S. Ct. at 1620. At the time, the immigration judge considered felony DUI to be a crime of violence, and therefore an aggravated felony. Id. The Supreme Court subsequently held that DUI crimes did not qualify as crimes of violence. Id. ; see Leocal v. Ashcroft , 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). So, when the defendant faced charges under § 1326, the district court and Ninth Circuit dismissed his indictment under Ochoa because the defendant was not informed that he was eligible for relief.¹ See United States v. Palomar-Santiago , 813 F. App'x 282, 284 (9th Cir. 2020). Because the defendant had shown he was not advised of his eligibility for relief, he was not aware of his right to appeal and therefore was excused from establishing the first two requirements under § 1326(d). Id. The Supreme Court reversed. Palomar-Santiago , 141 S. Ct. at 1620. Because § 1326(d) framed its requirements using the conjunctive "and," the defendant needed to establish all three requirements to be eligible for relief. Id. at 1621. The Ninth Circuit's application of Ochoa contravened the statute 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 prongs under the statute. Id. at 1620–21.

While the Ninth Circuit has on several occasions expressed doubt about "the continued vitality" of judge-made rules excusing a defendant from establishing each element of § 1326(d), it has not had occasion to squarely address Palomar-Santiago ’s impact on its prior jurisprudence. See Zamorano v. Garland , 2 F.4th 1213, 1225 (9th Cir. 2021) ; United States v. Castellanos-Avalos , 22 F.4th 1142, 1146 (9th Cir. 2022) ; Alam v. Garland , 11 F.4th 1133, 1137–38 (9th Cir. 2021) (en banc) (Bennett, J., concurring); United States v. Bastide-Hernandez , 3 F.4th 1193, 1197 (9th Cir. 2021), reh'g en banc granted, opinion vacated by 20 F.4th 1230 (9th Cir. 2021).

B. Administrative Remedies

The Defendant argues he satisfies § 1326(d)(1) because he had no available administrative remedies where he could contest the immigration officer's determination that his prior conviction was an aggravated felony. (Doc. 44 at 10.) The Defendant was removed pursuant to 8 U.S.C. § 1228(b), which provides expedited administrative processes to remove individuals who have been convicted of aggravated felonies. See also 8 C.F.R. § 238.1 (setting forth procedures for administrative removals pursuant to § 1228(b) ).² The Defendant's Form I-851 indicates the immigration officer determined his kidnapping conviction was an aggravated felony because it was a crime of violence. (Doc. 44-2 at 4); 8 U.S.C. § 1101(a)(43)(F). The Defendant claims this was in error, as United States v. Marquez-Lobos establishes that Ariz. Rev. Stat. § 13-1304 does not contain the requisite "element of physical force."³ 697 F.3d 759, 764 (9th Cir. 2012).

The Defendant's Form I-851 informed him that there are several enumerated grounds upon which he can contest his order of deportation. The form presented him with three potential grounds: (1) that he is a "citizen or national of the United States," (2) that he is "a lawful permanent resident of the United States," and (3) that he "was not convicted of the criminal offense described" in the form. (Doc. 44-2 at 3.) But it did not explicitly inform him that he could "refute ... the legal conclusion underlying his removability," and its design suggests "removability could only be contested on factual grounds." United States v. Valdivia-Flores , 876 F.3d 1201, 1205–06 (9th Cir. 2017). Moreover, the Defendant has attached administrative guidance documents that suggest any administrative review of a contested Form I-851 is "limited to factual matters," a contention the government does not rebut. (Doc. 44-5 at 23.) Therefore, to the extent the Defendant would have wanted to challenge the legal basis for his removal, no administrative remedies were available to him.

C. Judicial Review

On his Form I-851, the Defendant appears to have waived his right to pursue judicial review of the immigration officer's determination that he was an...