United States v. Zavala-Cruz

UNITED STATES OF AMERICA, Plaintiff, v. FILIBERTO ZAVALA-CRUZ, Defendant.

Case No. 19-cr-00701-WHO-1

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

August 19, 2020

ORDER DENYING MOTIONS TO DISMISS THE INDICTMENT

Re: Dkt. Nos. 22, 42, 52, 53

Before me are two motions to dismiss the indictment for illegal reentry following deportation in violation of 8 U.S.C. § 1326. Filiberto Zavala-Cruz argues that the immigration judge who issued his January 14, 2013 removal order did not have jurisdiction and his removal was fundamentally unfair due to ineffective assistance of counsel, denial of counsel, and the immigration judge's failure to advise him on his eligibility for voluntary departure. If Zavala had received voluntary departure in 2013, he could not be prosecuted criminally for re-entering the country after being removed in January 2013.

Zavala's Notice to Appear ("NTA") was defective because it did not include the address of the immigration court, but he received subsequent notices which included the omitted information and properly vested the immigration judge of jurisdiction. He cannot show that his 2013 removal was fundamentally unfair; it is not plausible that the immigration judge would have granted him voluntary departure given his prior immigration and criminal history, despite the positive equities in his case. For these reasons, both motions to dismiss are DENIED.

BACKGROUND

I. FACTUAL BACKGROUND

A. Before Removal Proceedings

Zavala is a citizen of Mexico. Between 2002 and 2004, he was apprehended by United States Border Patrol Agents seven times for being present in the United States without admission at or near the Mexican border. Declaration of Oren Avneri in Support of Government's Opposition to Defendant's Second Motion to Dismiss Indictment ("Avneri Decl.") [Dkt. No. 49], Ex. A.

Sometime between 2007 and 2008, Zavala was arrested in Mendocino County. See Declaration of Calvin Choi in Support of Government's Opposition to Defendant's Motion to Dismiss Indictment ("Choi Decl.") [Dkt. No. 27] Ex. B (court records from Mendocino County Superior Court). He pleaded guilty to a felony offense for preventing or dissuading a witness by force or threat and misdemeanor spousal battery. Id.

Zavala was subsequently interviewed by United States Immigration and Customs Enforcement ("ICE") and signed a form in which he admitted that he was in the United States illegally, waived the right to a hearing before the immigration court, and stated that he wanted to return to his country as soon as arrangement could be made. Choi Decl., Ex. D (April 17, 2008 Notice of Rights and Request for Disposition). He was granted voluntary return to Mexico "due to no known criminal convictions and lack of bed space." Id., Ex. C (April 17, 2008 Report of Deportable/Inadmissible Alien). Zavala returned to Mexico on April 18, 2008. Id., Ex. E.

B. 2012 Conviction and Removal Proceedings

On August 2, 2012, Zavala was charged with weapons-related offenses and unlawful possession of a wild pig in Lake County. Declaration of Jason Kleinwaks in Support of Government's Opposition to Defendant's Second Motion to Dismiss Indictment ("Suppl. Kleinwaks Decl.") [Dkt. No. 50], Ex. C (court records from Lake County Superior Court). On October 29, 2012, the weapons-related charges were dismissed and he pleaded no contest to two Fish and Game misdemeanors for unlawful possession of a wild pig. Id. He then entered removal proceedings.

On October 31, 2012, he was transferred from Lake County jail to ICE custody and held in the detention unit at the ICE office in San Francisco. Choi Decl. ¶ 8. There, ICE generated a NTA for removal proceedings, which set forth factual allegations against him regarding his unlawful presence in the United States. Declaration of Amy Senia in Support of Defendant's Motion to Dismiss ("Senia Decl.") [Dkt. No. 23] Ex. C (October 31, 2012 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." Senia Decl., Ex. C. The NTA stated that the date and time were "to be set" and the address space was left blank. Id. The Certificate of Service box indicated that Zavala was personally served the NTA on October 31, 2012, but the blank space for Zavala's signature has a handwritten notation stating "refused". Id. Zavala alleges that he has never seen this document before his attorney in this case showed it to him, and that agents never asked him to sign the document so he never "refused" to sign it. Declaration of Filiberto Zavala Medina in Support of Motion to Dismiss ("Zavala Decl.") [Dkt. No. 38] ¶ 10. The same day, on October 31, 2012, Zavala was transferred to Eloy Detention Center in Eloy, Arizona. Senia Decl., Ex. G (Detainee Transfer Notification). The space for "All charging documents have been served on alien and copies provided to them" was left unchecked in his transfer form. Id.

On November 6, 2012, the immigration court generated a Notice of Hearing in Removal Proceedings ("NOH"), which stated that Zavala's removal hearing would take place on November 21, 2012 at 8:30 A.M. at the Eloy Detention Center at 1705 East Hanna Road, Suite 366 in Eloy, Arizona. Choi Decl., Ex. L. The Certificate of Service indicates that it was served to Zavala "c/o Custodial Officer." Id.

Also on November 6, 2012, Grady Gauthier, Zavala's attorney in Fort Bragg, California, filed a notice of appearance and a motion for bond hearing. Choi Decl., Ex. M; Declaration of Grady Gauthier in Support of Motion to Dismiss ("Gauthier Decl.") [Dkt. No. 37] Ex. A (bond motion with supporting exhibits). An identical NOH regarding the November 21, 2012 hearing was mailed to Gauthier on November 7, 2012. Choi Decl., Ex. N.

1. November 21, 2012 & December 17, 2012 Master Hearings

Zavala, who was in ICE custody, appeared at the removal hearing on November 21, 2012, but his attorney, Gauthier, failed to appear in person or telephonically. Senia Decl., Ex. E at Audio File 2. Consequently, the immigration judge ("IJ") rescheduled the hearing to December 17, 2012. Id. On the same day, the immigration court mailed Gauthier an updated NOH with the new removal hearing date of December 17, 2012. Choi Decl., Ex. P.

Gauthier appeared telephonically at Zavala's hearing on December 17, 2012. Senia Decl., Ex. E at Audio File 3. Gauthier made arguments for Zavala's release from custody but the IJ explained that the proceeding was a removal hearing, not a custody redetermination hearing. Id. Gauthier then admitted the charges in the NTA on Zavala's behalf and asked for voluntary departure relief. Id. The IJ set Zavala's merits hearing for January 14, 2013. Id. On the same day, the immigration court mailed Gauthier a NOH for the January 14, 2013 proceeding, which indicated that all documents, briefs, and motions were due by January 7, 2013. Declaration of Jason Kleinwaks in Support of the United States' Opposition to Defendant's Motion to Dismiss the Indictment ("Kleinwaks Decl.") [Dkt. No. 31] Ex. A.

There is no evidence that Gauthier filed any documents supporting voluntary departure by the January 7, 2013 deadline. DHS counsel submitted four exhibits, including I-213 forms from April 17, 2008 and August 2, 2012, the conviction documents from Zavala's 2008 case and a police report from his 2012 charges. Second Declaration of Amy Senia in Support of Defendant's Motion to Dismiss [Dkt. No. 43], Ex. F.

2. January 14, 2013 Merits Hearing

Gauthier failed to appear at the merits hearing on January 14, 2013. Senia Decl., Ex. E at Audio File 4. The IJ asked Zavala where Gauthier was, and he responded that Gauthier was in California and that he decided to represent himself because Gauthier was unable to get him out on bond, explaining "there's nothing else really to do, I'd rather just go to Mexico." Id.; Choi Decl., Ex. R (December 20, 2012 order denying bond for lack of jurisdiction). The IJ called Gauthier to ask why he was not present in-person in court. Senia Decl., Ex. E at Audio File 4. It appears that Gauthier did not know he had to be present in-person. Id. He began to make argument forvoluntary departure, but the IJ interjected, saying "No, no, no, I'm not giving you the privilege." Id.

Gauthier then disclosed that Zavala had expressed he no longer wanted his services and asked to be relieved of his representation. Senia Decl., Ex. E at Audio File 4. The IJ asked Zavala "Do you want Mr. Gauthier to represent you or not?" Id. Zavala answered, "Well, I just want to leave now." Id. The IJ responded, "Not my question, sir" and Zavala replied, "No, well, I'm going to represent myself." Id. The IJ asked if he was sure and Zavala said yes. Id. The IJ determined that Zavala no longer wanted Gauthier's assistance and permitted Gauthier to withdraw. Id. The IJ proceeded to ask Zavala if he understood that he was giving up his right to an attorney, if he was going to represent himself, and if was ready to proceed, all of which Zavala confirmed. Id.

The IJ determined, and confirmed with the government, that Zavala was statutorily eligible for pre-hearing voluntary departure. Senia Decl., Ex. E at Audio File 4. The IJ then began to ask Zavala a series of questions, including: "How old are you?" "Married or single?" "Do you have any children?" "Which country were they born in?" "How old are they?" "Do you have any siblings here in the United States?" "When did you first come to the United States?" "Have you been employed here in the United States?" "Where were you last employed?" "How long did you work there?" Id.

The IJ asked "Sir, why do you want voluntary departure?" Senia Decl., Ex. E at Audio File 4. In his declaration, Zavala claims that he did not know what voluntary departure meant at the time and he did not understand the question. Zavala Decl. ¶ 22. Zavala replied that he has sole custody of his two daughters who he needed to support. Senia Decl., Ex. E at Audio File...