United States v. Yanez-Vivanto

433 F.Supp.3d 1121

UNITED STATES of America, Plaintiff,

v.Samuel Francisco YANEZ-VIVANTO, Defendant.

Case No. CR 18-0654 FMO

United States District Court, C.D. California.

Signed January 13, 2020

Agustin Dorian Orozco, AUSA - Office of US Attorney General Crimes Section, Los Angeles, CA, for Plaintiff.

ORDER RE: MOTION TO DISMISS INDICTMENT

Fernando M. Olguin, United States District Judge

Samuel Francisco Yanez-Vivanto ("defendant") is charged in a single count indictment with illegal reentry in violation of 8 U.S.C. § 1326. (Dkt. 1, Indictment). Defendant filed the instant Motion to Dismiss ("Motion"), arguing that (1) the underlying removal order was invalid because the Immigration Judge ("IJ") did not have jurisdiction to issue such an order; and (2) the process underlying the removal proceeding was fundamentally unfair. (See Dkt. 31, Motion at 5-20). Having reviewed and considered all the briefing filed with respect to defendant's Motion and the oral argument presented at the hearing on November 22, 2019, the court concludes as follows.

BACKGROUND

On May 12, 2006, the Immigration and Naturalization Service ("INS") served defendant with a Notice to Appear ("NTA") for removal proceedings under 8 U.S.C. § 1229. (See Dkt. 31-5, Exh. 4, NTA). Other than stating that the removal proceeding would be held "on a date to be set at a time to be set[,]" (id. ), the NTA did not specify the time, date, or place of the proceeding, nor did it specify the address of the immigration court where the charging document would be filed. (See, generally, id. ). The NTA did indicate the address where defendant was housed (in the Mira Loma Detention Center), which, in this instance, was also the location of the immigration court where defendant's removal proceeding was held. (See Dkt. 35, Government's Opposition ("Opp.") at 3).

On May 26, 2006, defendant received a Notice of Hearing ("NOH"), advising him of the time, date, and place of his removal proceeding.¹ (See Dkt. 35-10, Notice of Hearing). Defendant's removal proceeding was held on June 21, 2006. (See Dkt. 31-7, Exh. 6, Order of IJ). The proceeding took place in two parts: a group portion where the IJ addressed all individuals, and an individual portion where the IJ asked defendant a series of questions regarding his arrival to the United States, his family, and his criminal history. (See Dkt. 31-3, Transcript of Removal Proceeding ("Transcript")). During the hearing, defendant indicated that his parents were in the process of obtaining lawful immigration status, and that his sisters already had lawful immigration status. (See id. at 3). The IJ told defendant that a visa would not be available to him for about eight years based on the petition filed by his sisters. (See id. ). The IJ stated that the only other relief available to defendant was voluntary departure, but that he "d[id]n't know why [he] should grant voluntary departure to [defendant.]" (Id. ). The IJ then asked defendant, "Do you believe you deserve to be allowed to return voluntarily to Mexico?", to which defendant replied, "Yes" and the IJ then asked him, "Why?" (Id. ). Defendant's response was unclear, as he simply stated, "Well, I don't know. No." (Id. at 4). Rather than attempt to clarify the record, the IJ simply stated, "No?" to which defendant responded, "No." (Id. ). The IJ then ordered defendant removed and defendant was subsequently deported from the United States. (Dkt. 35-13, Exh. 12, Notice of Intent/Decision to Reinstate Prior Order).

On August 31, 2018, defendant was convicted of possession of a firearm in state court and, upon notice that defendant was in state custody, ICE lodged a detainer with the Los Angeles Police Department. (See Dkt. 35, Opp. at 9). On September 27, 2018, the government filed the Indictment in this case. (See Dkt. 1, Indictment).

LEGAL STANDARD

"A defendant charged under § 1326 has a due process right to collaterally attack his removal order because the removal order serves as a predicate element of his conviction." United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (internal quotation marks omitted). To prevail in this collateral attack, defendant must show: (1) exhaustion of "administrative remedies that may have been available [to him] to seek relief against the [prior removal] order; (2) the deportation proceedings at which the [removal] order was issued improperly deprived [him] of the opportunity for judicial review; and (3) that the entry of the [removal] order was fundamentally unfair." 8 U.S.C. § 1326(d) ; United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). A removal order is considered "fundamentally unfair" if defendant shows his due process rights were violated by defects in the underlying deportation proceeding and that he suffered prejudice as a result of those defects. See id. A violation of defendant's due process rights that renders the proceeding fundamentally unfair satisfies the exhaustion of administrative remedies and opportunity for judicial review prongs of 8 U.S.C. § 1326(d). See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1050 (9th Cir. 2004) (finding that the fundamentally unfair deportation proceeding "exempted [defendant] from the exhaustion bar" and also "deprived [defendant] the opportunity for meaningful judicial review."); United States v. Gomez, 757 F.3d 885, 892 (9th Cir. 2014) (finding the first two prongs of 8 U.S.C. § 1326(d) satisfied upon finding that "immigration officials in the underlying removal proceeding violated a regulation designed to protect an alien's right to judicial review.").

DISCUSSION

Title 8 Code of Federal Regulations § 1003.14(a),² entitled "Jurisdiction and commencement of proceedings" states that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the immigration court by the [Immigration and Naturalization Service.]" A "charging document" includes "a Notice to Appear" as well as "a Notice of Referral to Immigration Judge[ ] and a Notice of Intention to Rescind and Request for Hearing by Alien." Id. at § 1003.13. Another regulation sets forth the contents of the NTA. See id. at § 1003.15(b)-©. Under § 1003.15(b), the NTA must include, among other requirements, "[t]he address of the Immigration Court where the Service will file the Order to Show Cause and Notice to Appear[.]" Id. at § 1003.15(b). The necessary contents of a NTA are also enumerated by statute. See 8 U.S.C. § 1229(a) (requiring, among other things, the NTA to specify "[t]he time and place at which the proceedings will be held.")

In United States v. Karingithi, 913 F.3d 1158 (9th Cir. 2019), the Ninth Circuit held that because the statute, 8 U.S.C. § 1229(a), "is silent as to the jurisdiction of the Immigration Court," the regulations govern when jurisdiction vests in the immigration court. Id. at 1160. The Ninth Circuit stated that the question of "whether the Immigration Court has jurisdiction over removal proceedings ... is governed by federal immigration regulations, which provide that jurisdiction vests in the Immigration Court when a charging document, such as a notice to appear is filed[.]"³ Id. at 1158. Thus, "[t]he regulatory definition [of Notice of Appear] ... governs the Immigration Court's jurisdiction." Id. at 1160 ; see Deocampo v. Barr, 766 F.App'x 555, 557 (9th Cir. 2019) (" 8 C.F.R. § 1003.15(b) details the specific information that an NTA must contain in order to properly vest jurisdiction in the IJ[.]").

Defendant argues that jurisdiction never vested with the immigration court because the NTA did not, as required by § 1003.15(b), include the "address of the Immigration Court" where the NTA would be filed. (See Dkt. 31, Motion at 8). As noted above, Karingithi requires the court to look to the regulations to determine when jurisdiction vests. 913 F.3d at 1159-60. Under the applicable regulations, "[j]urisdiction vests ... when a charging document [such as a NTA] is filed." 8 C.F.R. §§ 1003.13 & 1003.14. A "notice to appear" "must ... include" the information set forth in § 1003.15(b), which includes the "address of the Immigration Court." Id. at § 1003.15, Thus, a notice to appear – such as the one at issue in this case – that lacks the address of the immigration court does not "satisf[y[ the regulatory requirements," Karingithi, 913 F.3d at 1159, and cannot vest the immigration court with jurisdiction. See United States v. Gutierrez-Ramirez, 2019 WL 3346481, *4 (N.D. Cal. 2019). Other courts have reached the same conclusion and their reasoning is persuasive.⁴ See, e.g., id.; United States v. Martinez-Aguilar, 2019 WL 2562655, *5-6 (C.D. Cal. 2019) ("[I]f the charging document is insufficient to ‘vest’ jurisdiction with the Immigration Court, the Immigration Court logically does not maintain authority to issue any removal orders in that case governed by the charging document, irrespective of whether the defendant actually appears in court."); United States v. Ramos-Urias ("Ramos I"), 348 F.Supp.3d 1030, 1035 (N.D. Cal. 2019) ("[W]here there is no valid charging document–in other words, no ‘notice to appear’–the immigration judge lacks jurisdiction to conduct removal proceedings."); United States v. Ortiz, 347 F.Supp.3d 402, 406 (D.N.D. 2018) ("When there is no valid charging document, the Immigration Judge does not have jurisdiction to conduct removal proceedings.").

The government asserts that "this Court need not reach the merits of defendant's contention that 8 C.F.R. § 1003.14 is a jurisdictional prerequisite to the immigration court's authority" but that if it does, "it should join every other circuit that has addressed the jurisdictional status of § 1003.14 in holding that it is a claims processing rule, not a rule establishing subject matter jurisdiction." (Dkt. 35, Opp. at 13-14). The government's assertion is unpersuasive. This is a case about the requirements set forth in § 1003.15(b) and whether omitting any of those...