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Kelly A. Canary FEDERAL DEFENDERS OF EASTERN WASHINGTON AND IDAHO 306 East Chestnut Avenue Yakima, Washington 98901 (509) 248-8920 Attorneys for Defendant JOSE GOMEZ-HERNANDEZ UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON (HONORABLE FRED VAN SICKLE) UNITED STATES OF AMERICA, Plaintiff, vs. ) ) ) ) ) ) ) ) ) )

CR-08-6005-FVS MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

9 JOSE GOMEZ-HERNANDEZ, 10 Defendant. 11 12 13 14 15 16 17 18 TO:

JAMES A. McDEVITT, UNITED STATES ATTORNEY JAMES P. HAGARTY, ASSISTANT UNITED STATES ATTORNEY The defendant, JOSE GOMEZ-HERNANDEZ, submits the following

memorandum in support of his motion to dismiss: Background On April 19, 2006, the Immigration and Naturalization Service issued a Notice to Appear, directed at Jose Gomez-Hernandez, alleging that Mr. Gomez-Hernandez was illegally in the United States because he had entered without inspection and because he had committed a crime of

19 moral turpitude (second degree robbery). 20 21 22 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 1 Exhibit A. Upon receiving the Notice to Appear, Mr. Gomez-Hernandez requested a prompt hearing before an immigration judge. Exhibit B. Mr. Gomez-Hernandezs prompt

hearing request specified that he waived having a 10-day period prior

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to appearing before an immigration judge.

Id.

Mr. Gomez-Hernandez Exhibit C.1

was ordered detained during the hearing process.

Despite Mr. Gomez-Hernandezs request for a prompt hearing, he was never taken before an immigration judge. Nor was Mr. Gomez-

Hernandezs case handled promptly, in less than 10 days, as requested. Instead, on May 9, 2006, 20 days after he received the notice to 6 appear, Mr. Gomez-Hernandez signed a stipulated request, waiving his 7 8 9 10 11 12 13 and 18, 2006. 14 entries, Mr. Gomez-Hernandez was apprehended and removed, pursuant to 15 16 17 18 19 20 21
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right to a hearing and agreeing to deportation.

Exhibit D.

On May

11, 2006, an immigration judge approved Mr. Gomez-Hernandezs stipulation and ordered that he be removed from the United States, based upon his admissions to charges laid in a notice to appear. Exhibit E. Mr. Gomez-Hernandez was subsequently deported pursuant to Exhibit F.

this order on May 13, 2006.

Mr. Gomez-Hernandez re-entered the United States on July 3, 13, See Exhibit G; Exhibit I; Exhibit K. After these re-

orders reinstating the May 13, 2006 order. Exhibit L.

Exhibit H; Exhibit J;

On January 15, 2008, an indictment was issued in the United States District Court for the Eastern District of Washington, charging Mr. Gomez-Hernandez with illegal re-entry in violation of 8 U.S.C. 1326. The indictment specifies four deportation dates: May 13, 2006,

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As of April 19, it does not appear that Mr. Gomez-Hernandez

was serving time for any reason other than the immigration matter. MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 2

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July 3, 2006, July 14, 2006, and July 18, 2006.

These dates

constitute Mr. Gomez-Hernandezs original deportation, based upon the May 13, 2006 order, and the three subsequent deportations, based upon orders of removal reinstating the May 13 order. It is Mr. Gomez-Hernandezs position that the current indictment must be dismissed because his prior deportation orders were issued in

6 violation of due process. 7 8 9 10 11 12 13 of the Fifth Amendment requires a meaningful opportunity for judicial 14 review of the underlying deportation. 15 16 17 18 19 20 21 22 Supreme Court determined that the elements set forth in 8 U.S.C. 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 3 Martinez, 133 F.3d 1194 (9th Cir. 1998). United States v. ZarateIf a defendants underlying The original order of removal from May, 2006, violated due process because Mr. Gomez-Hernandez never validly waived his right to appear before an immigration judge and apply for relief from deportation. The subsequent reinstatement orders also

violated due process because they were premised on a faulty underlying deportation order. Analysis In a criminal prosecution under 1326, the Due Process Clause

deportation proceeding fails to comport with due process, the validity of the proceeding may be collaterally attacked in a subsequent criminal proceeding. Id. A defendant can succeed in this collateral

attack by demonstrating: (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. Id.

In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the

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1326 do not require that a prior deportation be lawful. 36.

Id. at 835-

Nevertheless, the Court held that in order for 1326, itself, to

be constitutional, any deportation proceeding relied upon by the government in a 1326 prosecution must comport with due process. at 836. Accordingly, a defendant charged with alien re-entry is Id.

entitled to bring a pre-trial challenge to the legality of a prior 6 order of deportation. 7 8 9 10 11 12 13 who is able to establish that defects in a prior deportation 14 proceeding rendered the proceeding fundamentally unfair, in that the 15 16 17 18 19 20 21 See United States v. Proa-Tovar, 975 F.2d 592, 594 (9th Cir. 1992)(en 22 banc). 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 4 In developing this cause and prejudice standard, the Ninth defendant was deprived of judicial review, can prohibit the government from using the prior deportation as a critical component of an alien re-entry case. Id. at 837-840. In explaining its ruling, the Mendoza-Lopez Court noted that the use of the result of an administrative proceeding to establish an element of a criminal offense is troubling. at 839, n.15. Mendoza-Lopez, 481 U.S.

The Court ruled 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 review of the administrative proceeding. Id. at 837-38. A defendant

The Ninth Circuit has clarified that for a defendant charged with alien re-entry to succeed in a collateral attack of a prior deportation, the defendant must show that an error occurred during the underlying proceeding and caused the defendant to suffer prejudice.

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Circuit pointed out that the Supreme Court in Mendoza-Lopez did not say that the mere lack of direct review would preclude later use of the results of the administrative proceeding; it said that the review must be made available at any subsequent criminal proceeding. 595. 1. The May 2006, Deportation Was Defective Because Mr. GomezHernandez Did Not Validly Waive His Right to a Hearing. The required elements of a deportation proceeding are set forth at 8 U.S.C. 1229a. The statute specifies that immigration judges Id. at

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are responsible for conducting all proceedings governing the inadmissibility or deportability of an alien. 10 Under the statute, the Attorney General is authorized to create 11 regulations governing stipulated orders of removal. 12 13 14 15 16 17 18 aliens stipulation. 19 Immigration Judge must determine whether the aliens waiver of a full 20 21 22 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 5 blown hearing is voluntary, knowing, and intelligent. added). Mr. Gomez-Hernandezs May, 2006 deportation was executed pursuant Id (emphasis However, if the alien is unrepresented, the 1229a(d). 8 U.S.C. The statute specifies that a stipulated order of removal 8 U.S.C. 1229a(a)(1).

must be approved by an immigration judge and stipulated to by the alien (or the aliens representative) and someone from the immigration service. Id.

The Attorney Generals regulation regarding stipulated removals is located at 8 C.F.R. 1003.25(b). The regulation states that an

Immigration Judge can enter an order of deportation based upon an

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to the stipulated removal process set forth in 8 U.S.C. 1229a(d) and 8 C.F.R. 1003.25(b). There is no indication that Mr. GomezInstead, it

Hernandez ever appeared before an immigration judge.

appears that the Immigration Judge simply ordered removal based upon the bare face of the stipulation, as well as the contents of Mr. Gomez-Hernandezs alien file, which included a previously-filed

6 request for a prompt hearing. 7 8 9 10 11 12 13 206, 73 S. Ct. 625, 97 L. Ed. 956 (1953). 14 located in the United States are guaranteed procedural due process and 15 16 17 18 19 20 21 States v. Lopez-Vasquez, 1 F.3d 751 (9th Cir. 1993). 22 the terms of the applicable regulation (8 C.F.R. 1003.25(b)), the 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 6 Consistent with the opportunity to be heard with regard to administrative determinations regarding their status and possible deportation or removal from the United States. Sung v. McGrath, 339 U.S. 33 (1950). Nevertheless, aliens There is no indication that Mr. GomezHernandez was represented by counsel at any time during his immigration proceedings. It is well-settled that immigration proceedings, including deportation, exclusion and removal proceedings, are civil in character and do not require the provision of full criminal procedural rights in order to conform to constitutional standards. U.S. 524 (1952); Carlson v. Landon, 342

Shaughnessy v. United States ex rel. Mezei, 345 U.S.

Due process does not prohibit an alien from being able to waive his rights in the context of an immigration proceeding. However, the

Ninth Circuit has made clear that the courts must take care to make sure that an aliens waiver of rights is valid. See, e.g., United

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Ninth Circuit requires that an aliens waiver of right be considered and intelligent. Lopez-Vasquez, 1 F.3d at 753. The government A Court

bears the burden of proving the waiver.

Id. at 754.

reviewing an immigration record must indulge every reasonable presumption against waiver. Id. (citations omitted).

Most of the Ninth Circuits cases dealing with waivers in the 6 context of immigration proceedings have involved the aliens waiver of 7 8 9 10 11 12 13 immigration judges did not make sufficient inquiry into the intentions 14 of the respondents and did not explain the complexity of the legal 15 16 17 18 19 20 21 lesser standard. 22 There is absolutely no evidence that the immigration judge who 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 7 arguments that could be made with regard to asylum claims. v. INS, 600 F.2d 1094 (5th Cir. 1979); Partible his right to counsel. In considering the effectiveness of a waiver in

this context, the Ninth Circuit has looked at the following issues in determining the competency of an alien to waive his or her rights: age, intelligence, education, information, understanding, and ability to comprehend. Murgia-Melendez v. INS, 407 F.2d 207 (9th Cir. 1979).

In several cases, courts have held that respondents did not make voluntary and informed waivers of the right to counsel when the

Castro-O'Ryan v. INS, 821 F.2d

1415 (9th Cir. 1987), as amended, 847 F.2d 1307 (9th Cir. 1988); Reyes-Palacios v. INS, 836 F.2d 1154 (9th Cir. 1988). There is no

reason to believe that the standard for assessing a waiver of the right to an immigration hearing (which entails a waiver of the right to counsel if the alien is unrepresented), should be governed by any

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signed the May 2006 order of removal engaged in any sort of inquiry before accepting Mr. Gomez-Hernandezs waiver of a right to a hearing and to all the other procedural rights concomitant thereto. There was

no inquiry as to whether Mr. Gomez-Hernandez was educated, could read the forms (either in English or in Spanish), had in fact read the forms, or had them read to him, did in fact understand the forms, or

6 any possible relief he may have had from removal. 7 8 9 10 11 12 13 Hernandez unrepresented, he had previously asked for a prompt hearing. 14 Mr. Gomez-Hernandezs hearing request contemplated a hearing in less 15 16 17 18 19 20 21 undermines the validity of a Miranda waiver). 22 Given these circumstances, it is clear that the waiver was legally 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 8 Yet nothing was done. than 10 days. Exhibit B. Yet 20 days passed before Mr. GomezThe fact that (declaration of Mr. Gomez-Hernandez). Exhibit M Because Mr. Gomez-Hernandez was Because none

unrepresented, some sort of verification was required.

took place, Mr. Gomez-Hernandezs waiver of an immigration hearing was invalid and the process against him did not comport with due process. In the case at hand, the warning signs that should have been evident to the immigration judge were greater than what they might normally be in a stipulated removal case. Not only was Mr. Gomez-

Hernandez was presented with the stipulation to sign.

Mr. Gomez-Hernandez finally gave in, after 20 days in custody, and agreed to removal, despite his earlier request for a hearing, should have prompted the immigration judge to do something to determine that Mr. Gomez-Hernandezs waiver was valid. See, e.g., United States v.

Wilson, 838 F.2d 1081 (9th Cir. 1988)(delayed period of incarceration

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invalid and Mr. Gomez-Hernandezs deportation proceeding can not be held to satisfy the demand of due process. Mr. Gomez-Hernandez was prejudiced by the failure of the immigration judge to obtain a valid waiver of his right to a hearing. Had Mr. Gomez-Hernandez not waived his right, the Immigration Judge would have been required to have advised him of the possibility of

6 fast-track voluntary departure at his immigration proceeding. See 7 8 9 10 11 12 13 whether or not he had waived that claim for relief, the May, 2006 14 order of deportation cannot be relied upon to justify the current 15 16 17 18 19 20 21 22 previously, then an immigration officer can reinstate a prior order of 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 9 prosecution. 2. The Indictment, Which Alleges a Removal that was Pursuant to a Reinstatement, Must Be Dismissed because the Reinstatement Process, in the Criminal Context, Violates Due Process. a. Background Pertaining to the Reinstatement Process The immigration statute contemplates that aliens can be removed from the United States through a reinstatement process. 1229(a). 8 U.S.C. United States v. Ortiz-Lopez, 385 F.3d 1202 (9th Cir. 2004). At the

time of his May, 2006, immigration proceeding Mr. Gomez-Hernandez had a plausible claim for fast-track voluntary departure because he did not have a disqualifying conviction and would have been able to pay the $100 typically required for fast track relief. Exhibit M.

Because Mr. Gomez-Hernandez had a plausible claim for relief from deportation and his due process rights were violated in assessing

Under the reinstatement process, an alien does not appear Instead, if an alien has been removed

before an immigration judge.

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removal if an alien is found back in the United States. 1231(a)(5).

8 U.S.C.

Once the immigration officer issues a reinstatement

order, the reinstatement may not be reviewed, the alien is not eligible for relief from removal and the alien will be removed from the United States. Id. Under the reinstatement regulations, the

alien is not allowed to appear before an immigration judge to contest 6 the charges and/or evidence, to present evidence, or to seek relief 7 8 9 10 11 12 13 alien has illegally entered the United States, the alien may be 14 expelled only after proceedings conforming to traditional standards of 15 16 17 18 19 20 21
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from removal.

Compare 8 C.F.R. 241.8 with 8 C.F.R. 242.33 repealed

(stating that under the former reinstatement procedure, an alien was entitled to a hearing before an immigration judge and could contest the evidence and charges, present evidence and to apply for relief from removal). The Supreme Court has never reviewed the constitutionality of the reinstatement process. However, the Court has stated that even if an

fairness encompassed in due process of law.

Shaughnessy v. United In discussing the

States ex. rel. Mezei, 345 U.S. 206, 212 (1953).

reinstatement process and 8 C.F.R. 241.8,2 the Ninth Circuit has stated that it had serious doubts as to the constitutionality of these procedures. Castro-Cortez v. INS, 239 F.3d 1037, 1050 (9th

Cir. 2001) (stating that the reinstatement process strips individuals

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The procedures for the reinstatement process are located in

8 C.F.R. 241.8. MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 10

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of basic due process rights, such as appearing before a neutral judge with the assistance of counsel). b. The Reinstatement Process Violates Due Process, As Applied to Future Criminal Proceedings. The reinstatement process as applied to future criminal proceeding violates due process because it fails to provide basic, minimal due process protections to aliens. The Supreme Court has

stated that the minimal requirements of due process include the following: 1. a written notice of the claimed violations, 2. a

disclosure of the adverse evidence, 3. an opportunity to be heard in person and to present witnesses and documentary evidence, 4. 10 opportunity to confront and cross-examine adverse witnesses (unless 11 12 13 14 15 16 17 officer relies upon documents located in an aliens A-file. 18 requirement would allow an alien to review the adverse evidence and 19 20 21 22 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 11 respond in person to the adverse evidence. process does not allow for such procedures. However, the reinstatement By not providing and A basic good cause for not allowing confrontation), 5. a neutral and detached hearing body, and 6. a written statement by the fact finder as to the evidence relied upon and reasons for the decision. Morrissey v. an

Brewer, 408 U.S. 471, 488-89 (1972)(addressing the issue of minimal due process requirements for parole revocation hearings). The reinstatement process does not provide the basic due process requirements to aliens. In the reinstatement process, an immigration

allowing aliens to review and respond to adverse evidence, the statute also violates immigration regulations. 8 C.F.R. 1292.4(b)(allowing

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for a party or partys attorney to have access to the record of proceeding in an immigration office); 8 C.F.R. 103.2(b)(16)(i) (stating that if an adverse decision is based upon derogatory information, the applicant or petitioner will be given notice and an opportunity to rebut the information, as well as present evidence before an decision is made).

6 Additionally, the reinstatement process does not allow for a 7 8 9 10 11 12 13 removal, which is a determination that only an immigration judge can 14 make under 240(a)(1). 15 16 17 18 19 20 21 22 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 12 An immigration officer is not a neutral or detached fact finder, but instead is an agent of the Department of Homeland Security and is in many ways a law enforcement officer. The neutral judge to determine if an alien is subject to removal. Under

INA 240(a)(1), an immigration judge must determine whether an alien is inadmissible or deportable. Under 241(a)(5), a reinstatement

order should be issued if an immigration officer finds that an alien who was previously deported has now illegally reentered the United States. Therefore, under the reinstatement process, an immigration

officer is making the determination of whether an alien is subject to

reinstatement process does not provide the minimal requirements of due process to aliens. c. The Ninth Circuits Decision in Morales-Izuierdo v. Gonzalez, 486 F.3d 484 (9th Cir. 2007)(en banc), Upholding Reinstatements in the Civil Context, Cannot Apply in the Criminal Context, Because to Do So Would Conflict with the Supreme Courts Decision in United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987).

Mr. Gomez-Hernandez recognizes that in Morales-Izquierdo v.

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Gonzales, 486 F.3d 484 (9th Cir. 2007)(en banc), the Ninth Circuit approved the use of reinstatement orders in the civil context. However, the Ninth Circuits decision specifically cautioned against relying on the use of a reinstatement order in a criminal proceeding. In upholding the use of a reinstatement order in a civil proceeding, the court noted, the reinstatement order [here] imposes no civil or

6 criminal penalties, creates no new obstacles to attacking the validity 7 8 9 10 11 12 13 the only way to reconcile the decision with Mendoza-Lopez is to limit 14 it to the civil context. 15 16 17 18 19 20 21 valid civilly, it must not have any legal significance in and of 22 itself, other than to effect the removal of an alien from the country. 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 13 Looking to the case at hand, the reinstatement orders that are the predicates of Mr. Gomez-Hernandezs July, 2006 deportations cannot be used in the current case because they did not permit judicial review and they reinstated an order (i.e. the May 13, 2006 order) that was also defective because it did not comport with due process or allow for judicial review. The Ninth Circuits decision in Moralesof the removal order .... 486 F.3d at 498. This limiting language in

Morales-Izquierdo was critical to the validity of the decision because the Supreme Court has demanded, in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), that a deportation order allow an alien due process and judicial review if it is to be used in a criminal proceeding. Because Morales-Izquierdo specifically approved of a civil deportation process that does not allow for judicial review, see 486 F.3d at 497,

Izquierdo makes clear that, in order for a reinstatement order to be

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This logic means that a reinstatement order cannot have any legal significance to a prosecution for illegal reentry. Yet in this case,

this is precisely what would happen, should the Court authorize Mr. Gomez-Hernandezs prosecution merely on the basis of his deportations that occurred subsequent to reinstatement orders. An invalid order of

removal cannot be made valid through a reinstatement order and then 6 used to justify a criminal prosecution. 7 8 9 10 11 12 13 reinstated may be used as the predicate offense for the 1326 14 prosecution. 15 16 17 18 19 20 21 22 Based upon the foregoing analysis, it is Mr. Gomez-Hernandez 23 24 MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 14 Conclusion Mr. Gomez-Hernandez has never appeared before an immigration judge, despite requesting an expedited hearing. Mr. Gomez-Hernandez was never advised of his rights or remedies or given the opportunity to request relief from deportation. Although Mr. Gomez-Hernandez Such a result is inconsistent with both Morales-Izquierdo and Mendoza-Lopez. The only way to read Morales-Izquierdo as not directly conflicting with, or attempting to overrule, Mendoza-Lopez is to limit the holding in Morales-Izquiedo to the civil context. If the underlying proceeding violated due process as required by Mendoza-Lopez and the alien was prejudiced by that deficiency, neither the reinstatement proceeding nor the original proceeding which was

received notice to appear, he has never been given an opportunity to be heard as required by the due process clause of fifth and fourteenth amendments of the United States Constitution.

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position that this matter must be dismissed, because his due process rights were violated in the deportation proceedings which the government seeks to use as the basis for a conviction under 8 U.S.C. 1326. DATED: March 27, 2008. Respectfully Submitted, s/Kelly A. Canary Kelly A. Canary, 39217 Attorney for JOSE GOMEZ-HERNANDEZ Federal Defenders of Eastern Washington and Idaho 306 East Chestnut Avenue Yakima, Washington 98901 (509) 248-8920 Kelly_canary@fd.org

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 15

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CERTIFICATE OF SERVICE I hereby certify that on March 27, 2008, I electronically filed

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Defendants Memorandum in Support of Motion to Dismiss with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following: James P. Hagarty, Assistant United States Attorney. s/ Kelly A. Canary Kelly A. Canary, 39217 Attorney for JOSE GOMEZ-HERNANDEZ Federal Defenders of Eastern Washington and Idaho 306 East Chestnut Avenue Yakima, Washington 98901 (509) 248-8920 Kelly_canary@fd.org

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS 16