Kevin F. McCoy
Assistant Federal Public Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, AK 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. A98-046 CR (HRH)
)
Plaintiff, )
) xxxxxxxxxxxxxxxx
vs. ) MOTION TO DISMISS INDICTMENT
)
xxxxxxxxxxxxxxxx, )
)
Defendant. )
____________________________________)
xxxxxxxxxxxxxx, through his counsel, moves this court for an order dismissing the indictment in the above-styled matter because the July 24, 1997 removal order cannot be used by the government consistent with due process to establish a violation of 8 U.S.C. § 1326(a)(2).
This motion is submitted pursuant to Fed.R.Crim.P. 12(b), D.Ak.L.R. 7.1 and is based upon the Fifth Amendment Due Process Clause, United States v. Mendoza-Lopez, 481 U.S. 86, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1986), and the Memorandum of Law filed herewith.
A period of excludable delay may occur under 18 U.S.C. § 3161(h)(1)(F).
Dated at Anchorage, Alaska this ______ day of April, 1998.
FEDERAL DEFENDER
FOR THE DISTRICT OF ALASKA
______________________________
KEVIN F. McCOY
Assistant Federal Defender
I hereby certify that on the _____ day of
April, 1998, I hand delivered a copy of
xxxxxxxxxxxxxxxxxxxxxxxxxx
MOTION TO DISMISS INDICTMENT;
MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS INDICTMENT
to: Crandon Randell, Assistant U.S. Attorney,
U.S. Attorney's Office, 222 W. Seventh Avenue,
Anchorage, AK 99513.
________________________________________
Lynn M. Wright
Kevin F. McCoy
Assistant Federal Public Defender
FEDERAL PUBLIC DEFENDER
FOR THE DISTRICT OF ALASKA
550 W. Seventh Avenue, Suite 1600
Anchorage, AK 99501
(907) 271-2277
Attorney for Defendant
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA, ) CASE NO. A98-046 CR (HRH)
)
Plaintiff, )
) MEMORANDUM IN SUPPORT OF
vs. ) MOTION TO DISMISS INDICTMENT
)
xxxxxxxxxxxxxxx, )
)
Defendant. )
____________________________________)
I. Introduction.
On March 17, 1998, the grand jury charged xxxxxxxxxx with being unlawfully present in the United States without permission of the Attorney General after deportation in violation of 8 U.S.C. § 1326(a)(2). The indictment alleges that the Immigration and Naturalization Service deported Mr. xxxxx to Mexico at Calexico, California on August 1, 1997. As a consequence of the indictment, Mr. xxxxx faces a roughly estimated sentence of 10 to 16 months under the Sentencing Guidelines.xxxxx
The matter is now before the court on a motion to dismiss because the July 24, 1997 removal proceeding violated the Fifth Amendment Due Process Clause and therefore cannot serve as a basis for this indictment.
II. Antonio xxxxx-Alcazar's Background.
Antonio xxxxx was born in Cotija, Michoacan, Mexico on June 13, 1966 to Eliseo and Guadalupe xxxxx-Alcazar. Sometime in the late 1960's or the early 1970's, Eliseo left his family in Mexico and journeyed to America in search of a better life. He entered the United States illegally and traveled to Hood River County, Oregon. Once there he obtained employment at a dairy farm and began to work as a seasonal picker in the area orchards. His plan was to work until he had enough money to establish a home and bring his family to Oregon.
By 1974, Eliseo had earned enough money to bring his family to Hood River County. Accordingly, when Mr. xxxxx was seven years old, his mother, Guadalupe, his brothers, Samuel and Rafael, and his sister Imelda entered the United States illegally to reunite with Eliseo and join him in their new home in Oregon. Thus began Mr. xxxxx's process of assimilation into the American Culture.
Eliseo established a home for the family in Parkdale, Oregon and arranged for his wife to work at the dairy farm. The family lived in Hood River County for the next twelve years. During this time, Mr. xxxxx enrolled in the public school system and attended Parkdale Elementary School, Wy'est Junior High School, and Hood River Valley High School. Although he speaks Spanish, as a result of his American education, English is Mr. xxxxx's primary language.
In 1986, Mr. xxxxx's parents separated. When that happened, Mr. xxxxx, his mother, and his siblings left Parkdale and moved to Granger, Washington. Mr. xxxxx never finished high school. However, after he left Oregon, he obtained his G.E.D. diploma from the Washington State University High School Equivalency Program.
Over the years, the xxxxx-Alcazar family developed substantial social, economic, and personal ties to the United States. Mr. xxxxx's parents have lawfully adjusted their status and are now naturalized citizens. Eliseo's parents eventually left Mexico and joined their son in the Hood River area where they retired. They are now both deceased and are buried in Hood River Memorial Cemetery. Brother Rafael and sister Imelda have likewise become naturalized citizens and Joseph, a brother born after the family reunited in 1974, is a United States citizen by birth. In addition, Mr. xxxxx now has three children, all United States Citizens by birth. Antonio xxxxx, Jr. was born on March 21, 1988; he is ten years old. Matthew Salinas was born on January 4, 1989; he is now nine years old. Rachael Marie xxxxx was born on September 4, 1990; she is now seven years old.
While in Granger, Washington, Mr. xxxxx applied for legal assistance from Evergreen Legal Services and on October 6, 1988, I.N.S. granted him temporary resident status. Thereafter, on December 1, 1990 in Seattle, Washington, I.N.S. adjusted Mr. xxxxx's status to Lawful Permanent Resident Alien. Unfortunately, Mr. xxxxx struggles with an alcohol problem. This problem has resulted in numerous alcohol-related misdemeanor offenses in Oregon, Washington, and Alaska.. Notwithstanding this difficulty, after 24 years of assimilation, Mr. xxxxx's primary cultural, social, and family ties are with the United States. Cf. United States v. Lipman, 133 F.3d 726, 730 (9th Cir. 1997).
III. The Civil Protective Order.
Since leaving home, Mr. xxxxx has supported himself by working in warehouses, orchards, and in fruit processing plants. Beginning in 1991, he began to travel to Alaska on a seasonal basis to work in the fishing industry, first in offshore factory trawlers and later in canneries in Dutch Harbor.
In 1997, Mr. xxxxx began a relationship with Mary Phillips in Dutch Harbor, Alaska. On March 19,1997, Ms. Phillips obtained a 20 day ex parte protective order from the Unalaska district court in Phillips v. xxxxx, 3UN-97-22 CI. The protective order forbade Mr. xxxxx from telephoning the Delta Western Bunkhouse in Unalaska. Mr. xxxxx violated that order by calling the bunkhouse from the Unalaska jail and inquiring about lost jewelry. On March 26, 1997, Mr. xxxxx pleaded guilty to telephoning the Delta Western Bunkhouse in violation of AS 11.56.740(a) and received a sentence of sixty days with forty-five days suspended. On April 3, 1997, the Unalaska district court finalized the protective order and prohibited Mr. xxxxx from telephoning Ms. Phillips. As part of the final order, the court directed Ms. Phillips to return Mr. xxxxx's jewelry to him. On May 6, 1997, hoping to re-establish his relationship with Ms. Phillips, Mr. xxxxx telephoned her at the Alaska Commercial Store in Unalaska in violation of the protective order. On May 19, 1997, Mr. xxxxx again admitted breaching the protective order by telephoning Ms. Phillips at her place of employment and received a sentence of 90 days with 60 days suspended for violating AS 11.56.740(a)(1). At the conclusion of his sentence, Mr. xxxxx was released to I.N.S. custody and transported to Anchorage.
IV. The I.N.S. Removal Proceeding.
On June 19, 1997, the I.N.S. served Mr. xxxxx with a Notice to Appear in connection with removal proceedings under 8 U.S.C. § 1229a. The Notice to Appear alleged that Mr. xxxxx was a native and citizen of Mexico; that he had been admitted to the United States as a Lawful Permanent Resident Alien on December 1, 1990; and that he had violated a protective order "that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued."
8 U.S.C. § 1227(a)(2)(E)(ii) renders an alien found in violation of a protective order which "involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protective order was issued" subject to removal. However, 8 U.S.C. § 1229b(a) authorizes the attorney general to "cancel removal" for certain permanent residents if the alien demonstrates that he or she (1) has been lawfully admitted for not less than 5 years; (2) has resided in the United States continuously for 7 years after having been admitted in any status; and (3) has not been convicted of any aggravated felony.
Mr. xxxxx requested an immediate hearing after he received the Notice to Appear and was transported by I.N.S. to Seattle Washington, where he appeared without counsel at a group removal hearing before an immigration judge on June 30, 1997. At the group removal hearing, Mr. xxxxx acknowledged that he was a lawful permanent resident of the United States but conceded removal by admitting that he was a native and citizen of Mexico and by admitting that he was not a United States Citizen. However, the immigration judge invited Mr. xxxxx to apply for cancellation of removal pursuant to 8 U.S.C. § 1229b(a).
I.J. (1) Okay . . . and sir, even assuming you are subject to removal, you can apply for what is called cancellation of removal because you've had a green card for as long as you've had. Do you understand?
A.M. (2) Yes, I do your honor.
I.J. Do you want to apply for that?
A.M. Can you explain what that is?
I.J. Sure. What it basically means is that a person who has had a green card for as long as you have can in effect ask for a second chance to be able to stay in this country and keep your green card because if you take the order of removal and you simply go back to
Mexico, your green card is gone. So my advice to you is to ask for this.
June 30, 1997 Group Removal Hearing Tape.
Mr. xxxxx accepted the invitation to apply for Cancellation of Removal and, because of his indigence, the Immigration Judge waived the application fee. Mr. xxxxx then asked to be released to better prepare his application. The Immigration Judge denied his request for bond noting that "if you don't have any money to file the application, I don't think you're exactly a very good candidate for a low bond." Id. Consequently, Mr. xxxxx remained in I.N.S. detention until the July 24, 1997 Cancellation of Removal Hearing.
Mr. xxxxx appeared in custody without counsel before a different Immigration Judge on July 24, 1997. At this hearing he testified in support of his application for cancellation of removal and proffered the testimony of his mother and his brother Joseph as further support for his application. His brother testified but his mother did not. She apparently felt more comfortable speaking through an interpreter and none was available.
Regardless, at the end of the evidence, the Immigration Judge went off record to consider her decision. Before going back on the record the Immigration Judge engaged Mr. xxxxx in a colloquy. When she went on record the following transpired:
I.J. Back on Record. Mr. xxxxx, you and I have been talking about your case. And you understand why I have stated and explained to you why I'm not going to grant you your cancellation of removal. Basically, is it is because that for twelve years you've done nothing but violate the laws of this country. I don't know what your problems have been . . . they may have been alcohol related, they may also have been emotionally related. But whatever they are, you've got to correct these problems. And I cannot grant you your cancellation of removal. It is my understanding after discussing the case with you that you wish to accept this order . . . the court order of deportation . . . removing you to Mexico, is that correct?
A.M. Yes.
I.J. And you wish to be removed to Mexico?
A.M. Yes.
I.J. Alright, and Mr. Peck, the Service's wishes?
Peck: The Service will waive appeal.
I.J. Proceedings closed.
July 24, 1997 Cancellation of Removal Hearing Tape.
The Cancellation of Removal Hearing Tape contains no record of the Immigration Judge's off-the-record remarks to the unrepresented Antonio xxxxx immediately before she denied his application. Moreover, the record fails to demonstrate that the Immigration Judge evaluated and balanced the significant social, familial, and cultural ties Mr. xxxxx had formed after twenty-four years in this country. Finally, and most importantly, the Cancellation of Removal Hearing Tape contains no record that the Immigration Judge ever advised Mr. xxxxx that he had an absolute right to appeal her adverse decision to the Board of Immigration Appeals. What the record does reveal is that the Immigration Judge discounted Mr. xxxxx's contention that a removal order would work a substantial hardship on him and his children, and that, as a result of her decision, he would be banished to a country he had not lived in since 1974 and that he would be permanently separated from his family and his children.
V. The Indictment Must Be Dismissed Because July 24, 1997 Removal Order Violated Due Process And Cannot Be Used To Impose A Criminal Sanction.
The indictment in this case purports to impose a criminal sanction based on an administrative order that was not subject to meaningful judicial review. Mr. xxxxx respectfully submits that the Fifth Amendment Due Process Clause prevents the government from basing its indictment this administrative order.
A. Mr. xxxxx Was Entitled To Due Process At His July 24, 1997 Cancellation Of Removal Hearing And Could Not Properly Be Deported Except In Accordance With The Law And After A Fair Hearing.
It has long been recognized that an alien in the United States has a Fifth Amendment right to due process, including the right to a full and fair hearing at any deportation proceeding. Burgos-Abril v. INS, 58 F.3d 475, 476 (9th Cir. 1995); Cuadras v. U.S. INS, 910 F.2d 567, 573 (9th Cir. 1990); Mohsseni Behbahani v. INS, 796 F.2d 249, 250-51 (9th Cir. 1986); Garcia-Jaramillo v. INS, 604 F.2d 1236, 1239 (9th Cir. 1979), cert. denied, 449 U.S. 828, 101 S.Ct. 94, 66 L.Ed.2d 32 (1980). Accord The Japanese Immigrant Case, 189 U.S. 86, 101-100, 23 S. Ct. 611, 47 L. Ed. 721 (1903) (holding that an alien within the United States entitled to the full benefits of procedural due process under the aegis of the Fifth Amendment). These authorities convincingly establish that Mr. xxxxx was entitled to due process of law at the July 24, 1997 cancellation of removal hearing.
B. Due Process Is Violated Whenever An Administrative Order Not Subject To Judicial Review Is Used To Impose A Criminal Sanction.
In United States v. Mendoza-Lopez, 481 U.S. 828, 834, 107 S.Ct. 2148, 2153, 95 L.Ed.2d 772 (1987), the Court evaluated "whether a federal court must always accept as conclusive the fact of the deportation order, even if the deportation hearing was not conducted in conformity with due process" in a 8 U.S.C. § 1326 unlawful reentry prosecution. Although it determined that Congress never intended to permit collateral challenges to deportation proceedings in § 1326 prosecutions, Id., 481 U.S. at 837, 107 S.Ct. at 2154, the court nonetheless held that:
Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful judicial review of the administrative proceeding. This principle means that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense.
Id. 481 U.S. at 837-38, 107 S.Ct. at 2155. (citations and footnotes omitted). Notwithstanding Congress' contrary intent, Mendoza-Lopez authorizes the collateral attack of deportation hearings in § 1326 unlawful reentry prosecutions.
In Mendoza-Lopez, the respondents were charged with unlawful reentry after deportation in violation of § 1326. Each contended that their deportation hearing was fundamentally unfair because the immigration judge failed to adequately explain their right to apply for suspension of deportation and their right to appeal from an adverse ruling on their request for suspension of deportation. Id. 481 U.S. at 832, 107 S.Ct. at 2151-52. Both the district court and the U.S. Court of Appeals for the Eighth Circuit agreed. Id. Because these due process errors injected fundamental unfairness into the deportation hearings, the Supreme Court affirmed the lower court analysis and ruled that the resultant deportation orders could not be used to prove § 1326 unlawful reentry after deportation violations.
Mendoza-Lopez is directly applicable to Mr. xxxxx's case.
If the statute envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with due process.
Id. 481 U.S. at 837, 107 S.Ct. at 2155 (emphasis added).
The U.S. Court of Appeals for the Ninth Circuit recently summarized the holding of Mendoza-Lopez in terms directly applicable to Mr. xxxxx's case.
In a criminal prosecution under § 1326, the Due Process Clause of the Fifth Amendment requires a meaningful opportunity for judicial review of the underlying deportation. If the defendant's deportation proceedings fail to provide this opportunity, the validity of the deportation may be collaterally attacked in the criminal proceeding. Zarate-Martinez can succeed in this collateral challenge only if he is able to demonstrate that: (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.
United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998).
In the present case, the Immigration Judge failed to provide Mr. xxxxx with a meaningful opportunity to seek appellate review of her adverse decision. This due process violation and the resultant prejudice that flows from that violation precludes the government from relying on the July 24, 1997 removal order as a basis for this prosecution. Accordingly, the indictment must be dismissed.
C. The Due Process Error In This Case Prejudiced Mr. xxxxx Because He Was Statutorily Eligible For Cancellation Of Removal And Because He Had Plausible Grounds For Relief.
Beginning with United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992)(en banc), courts require that the victim of a deportation hearing due process error establish prejudice before a § 1326 indictment is dismissed. Prejudice in this context does not mean actual prejudice. United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1997) ("In order to show prejudice, Jimenez-Marmolejo is not required to prove that he would have received discretionary relief from deportation pursuant to § 212(c).") Rather, prejudice is established if the immigrant can demonstrate that he or she had plausible grounds for relief from deportation but for the Due Process violation. United States v. Zarate-Martinez, 133 F.3d at 1198; United States v. Jimenez-Marmolejo, 104 F.3d at 1086; United States v. Alvarad-Delgado, 98 F.3d 492, 493 (9th Cir. 1966)(en banc), cert. denied, ___ U.S. ___, 117 S.Ct. 1096, 137 L.Ed.2d 228 (1997); United States v. Leon-Leon, 35 F.3d 1428, 1442 (9th Cir. 1994).
8 U.S.C. § 1229b(a) governs cancellation of removal for lawful permanent residents of the United States. It provides:
Cancellation of removal for certain permanent residents. The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien -
(1) has been an alien lawfully admitted for permanent residence for not less than 5 years;
(2) has resided in the United States continuously for 7 years after having been admitted in any status; and
(3) has not been convicted of any aggravated felony.
Mr. xxxxx clearly met the statutory requirements for cancellation of removal by July 24, 1997. First, I.N.S. granted him lawful temporary resident status on October 6, 1988. Second, on December 1, 1990, I.N.S. adjusted his status to lawful permanent resident. Finally, Mr. xxxxx has never been convicted of an aggravated felony.
Mr. xxxxx, who is now thirty-one, has lived in the United States since 1974. He achieved lawful temporary resident status on October 6, 1988, and lawful permanent resident status on December 1, 1990. He was educated in the United States and English is his primary language. His parents and three of his four siblings, all of whom reside in this country, are United States citizens. In addition, Mr. xxxxx has three United States citizen children. A removal order would naturally work a substantial hardship on Mr. xxxxx, his family, and his children - he would be deported to a country he had not resided in since 1974 and would be permanently separated from his family and his children. It is hard to imagine that someone such as Mr. xxxxx would so readily accept a removal order and give up his right to remain in this country if he knew he had even a remote chance to successfully challenge the Immigration Judge's decision to reject his cancellation of removal order.
Mr. xxxxx respectfully suggests that he has established the requisite prejudice necessary to sustain his collateral attack on the July 24, 1997 removal order.
VI. Conclusion.
For all these reasons, the indictment must be dismissed.
Dated at Anchorage, Alaska this ______ day of April, 1998.
FEDERAL DEFENDER
FOR THE DISTRICT OF ALASKA
______________________________
KEVIN F. McCOY
Assistant Federal Defender
1. Immigration Judge.
2. Antonio xxxxx.