Free Motion to Dismiss Indictment - District Court of California - California

Case 3:07-cr-03208-BEN

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GERALD T. McFADDEN (SBN 87446) Attorney at Law 2366 Front Street San Diego, CA 92101 (619) 338-0507 E-mail: [email protected] Attorney for Defendant RAUL ARREOLA-MONTES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HON. ROGER T. BENITEZ) UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) v. ) ) RAUL ARREOLA-MONTES, ) ) Defendant. ) ______________________________) Crim. Case No. 07CR3208-BEN STATEMENT OF FACTS AND POINTS AND AUTHORITIES IN SUPPORT OF MOTION

NCD: April 18, 2008 at 2:00 p.m.

I. STATEMENT OF FACTS The defendant is charged with being an alien who was previously deported and who was found in the United States on September 2, 2007, without official permission in violation of 8 U.S.C. § 1326. The government relies on the removal of March 1, 2007. An Immigration and Naturalization Service document, entitled Notice to Appear, dated February 22, 2007, alleged that: the defendant was an alien present in the United States who had not been admitted or paroled; was a citizen of Mexico who had entered the United States on or about June 14, 2006, and was not then admitted or paroled after inspection by an Immigration Officer; the defendant was convicted on July 6, 2006, in the Superior Court of California, County of San Francisco, for the offense of possession of methamphetamine for sale in violation of Section 11378 of the California Health & Safety Code and was sentenced to 1 year and 4 months in prison; based

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on documents provided by the government in this case and which Notice is Exhibit A of these Exhibits. The regular INA Section 240 removal hearing was conducted on or about March 1, 2007. The removal proceeding involved about 22 respondents and was conducted via video link by the Immigration Judge. The proceeding was conducted in English and interpreted for the defendant. The defendant was not represented by counsel. The Immigration Judge advised all respondents that he would examine their cases to see if any ground for relief from removal existed and would advise of such grounds and they could decide if wished to apply. The Immigration Judge elicited admission to the allegations set out in paragraph 2 above. The Immigration Judge questioned the defendant regarding his immigration status and established that the defendant was undocumented and not a lawful permanent resident. The Immigration Judge did not ask any questions regarding the defendant's personal or familial circumstances. The Immigration Judge advised the defendant that he did not qualify for any relief based on an aggravated felony conviction; and, the Immigration Judge did not advise the defendant of the right to apply for discretionary relief from deportation or any form of discretionary relief. The Immigration Judge ordered the defendant removed and deported to and then established that the defendant did not wish to appeal. (Exhibit B and D.) The defendant had been a resident of the United States for many years without documents. The defendant had a child living in the area of Concord, California, who is a United States citizen. This information was apparent from the defendant's A file at the time of the removal hearing. (See Exhibits C and D.) Reference to that and related inquiry would have revealed that the defendant's son was born on September 21, 2004, in Martinez, California, and his mother is Marina Cruz -- a United States citizen; the defendant and Marina consider themselves common law husband and wife and have had a relationship since 2002; Marina had 3 U.S. citizen children (ages 2 - 13) from a prior relationship whose father is not a significant part of their lives; the defendant treats these older children as his own and they consider the defendant their father; and, the defendant's removal from the United

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States is emotionally and financially hard on Marina and all 4 of the children. (See Exhibit E.) II. POINTS AND AUTHORITIES The immigration judge's statement that the defendant was ineligible for any relief and failure to advise of the right to apply for discretionary relief and its nature was legally incorrect. This failure to advise and misadvisement violated due process and the defendant may challenge the deportation and removal in this criminal proceeding. United States v. Arrieta, 224 F.3d 1076 (9th Cir. 2000). While the Arrieta opinion involved a different form of relief than is at issue here, the general principles are applicable. In United States v. Arrieta, supra, the defendant had entered the United States in 1986 at the age of nine. In 1996, he was convicted of attempted forcible rape and sentenced to a year in jail. Upon release in 1997, he had a deportation proceeding. He was ordered deported and waived appeal. In October 1998, the defendant was arrested and charged with a violation of 8 U.S.C. § 1326. The defendant's motion to dismiss the indictment based on the theory that the underlying deportation proceeding violated his right to due process was denied. The Ninth Circuit reversed the defendant's conviction. In a criminal prosecution under 8 U.S.C. § 1326, the defendant may challenge the validity of the deportation if the deportation proceeding failed to provide a meaningful opportunity for judicial review of the underlying deportation. A defendant can succeed in this challenge only if he is able to demonstrate that his due process rights were violated by defects in his underlying deportation proceeding and he suffered prejudice as a result of the defects. United States v. Arrieta, supra, 224 F.3d at 1079. It is a violation of due process of law--which then permits collateral attack in a subsequent criminal proceeding--not to advise an alien of right to apply for relief from deportation in a deportation proceeding where the record contains an inference that the alien may be eligible for discretionary relief from deportation. An alien, who has been convicted of an aggravated felony but who is not a lawful permanent resident and whose deportation is through a regular proceeding versus through a special expedited removal proceeding, is eligible for discretionary relief from deportation. United States v. Arrieta, supra, 224 F.3d at 1079-1081.

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As to prejudice, a defendant must only show that he had a plausible ground for relief from deportation. A plausible ground includes extreme hardship to a spouse, parent, or child who is a citizen or lawful permanent resident. The existence of family ties in the United States is the most important factor in determining hardship. Preservation of family unity may be a central factor in an extreme hardship determination. Deprivation of the alien's family of various forms of non-economic familial support and disruption of family unity may be plausible grounds for relief from deportation and satisfy the prejudice requirement. United States v. Arrieta, supra, 224 F.3d at 1081-1083. See also, e.g., Gutierrez-Centeno v. I.N.S., 99 F.3d 1529, 1533 (9th Cir. 1996); Cerrillo-Perez v. I.N.S., 808 F.2d 1419, 1423-25 (9th Cir. 1987); Contreras-Buenfil v. I.N.S., 712 F.2d 401, 403 (9th Cir. 1983). There are several different forms of relief from deportation ranging from a government decision not to pursue the deportation to suspension of deportation and adjustment of status. See generally, Gordon, Mailman, Yale-Loehr, Immigration Law and Procedure, Vol. 6, Chp. 74 (Matthew Bender & Co., Inc., Revised Edition, December 2000). At least three forms of relief are applicable here. First, the defendant should have been advised that he could have withdrawn his application for admission and deport the county pursuant 8 U.S.C. § 1225(a)(1) and (4). The defendant at the time of the removal hearing was "an alien present in the United States who has not been admitted" and so was "deemed [under the INA] an applicant for admission" under (a)(1); and such "an alien applying for admission may, in the discretion of the Attorney General and at any time, be permitted to withdraw the application for admission and deport immediately from the United States" under (a)(4). Second, the defendant should have been advised that he could parole into the United States even if on condition of immediate or future departure. The I.N.S. has extensive parole discretion. Gordon, Mailman, Yale-Loehr, Immigration Law and Procedure, Vol. 6, Sec. 62.01-62.04 (Matthew Bender & Co., Inc., Revised Edition, December 2007). Third, the defendant should have been advised that he could request the Attorney General to

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/// /// make a discretionary decision not to seek removal.1 Given the nature of the continuing changes in immigration law since 1988, a critical form of relief from deportation is prosecutorial discretion. The Attorney General has stated that "in view of the expanded classifications of criminal aliens for whom no statutory relief from removal exists, the exercise of such discretion can be `the only means for averting the extreme hardship associated with certain removal cases.'" In re Mengisteab BAHTA, Interim Decision 3437 at pp. 15-16 (BIA, October 4, 2000) (En Banc) (http://www.usdoj.gov/eoir/efoia/bia/Decisions/Revdec/pdfDEC/ 3437.pdf). As a matter of procedural due process, an alien should be notified of this form of relief.2 The defendant was not notified of this or any other form of relief. The INS has inherent executive administrative discretion -- on grounds ranging from humanitarian grounds to its own convenience3 -- to decline to institute deportation proceedings, terminate proceedings, or decline to execute a final order of deportation. The INS has and does in fact exercise this administrative discretion. Reno v. American-Arab Anti-Discrimination

See, e.g., "Battered woman not given asylum, but can stay here," San Diego Union-Tribune, Section A, p. 3, January 22, 2005 ("A Guatemalan refugee who is the focus of a long-running debate over asylum for battered women will be allowed to remain in the United States, the Homeland Security Department decided yesterday. ¶The case of Rodi Alvarado Pena had been in the hands of Attorney General John Ashcroft, who said two years ago he would decide her fate. Yesterday, he opted neither to grant nor deny asylum to Alvarado, who came to the United States 10 years ago to escape repeated beatings from her husband, a former soldier. ¶After Ashcroft's decision, Homeland Security spokesman Bill Strassberger said even if Alvarado ultimately is denied asylum, "the Department of Homeland Security will not pursue her removal from the United States." The Fifth Amendment guarantees due process in deportation proceedings. E.g., CamposSanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1999); and adequate notice is a critical aspect of procedural due process. Goldberg v. Kelly, 397 U.S. 254, 267, 90 S.Ct. 1011, 1021 (1970). In addition to the basic notice principle of due process of law, the immigration service's own regulations require such notice. Current 8 CFR 240.11(a)(2) requires that "[t]he immigration judge shall inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing." Application for the exercise of prosecutorial discretion is such a benefit. Aspects of this discretion are referenced in 8 CFR 239.2. The immigration service can decide not to commence proceedings at all, and may cancel a notice to appear to an alien for determination of deportability on grounds as broad and discretionary as the notice to appear was improvidently grant issued, 8 CFR 239.2(a)(6); and, can dismiss a deportation matter in immigration court on grounds as broad and discretionary as the proceeding was improvidently commenced, 8 CFR 239.2(C). 5
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Committee, 525 U.S. 471, 484-85, 119 S.Ct. 936, 943-44 (1999). The Board of Immigration Appeals has recently referred to the existence and exercise of the Service's discretion. "[T]here should be no question that, in fact, the Service still has prosecutorial discretion, which includes the discretion to address the equities of individual cases in a manner that the rigid application of a broadly drawn statute often will not allow. "In this regard, in restricting the judicial review of `the decision or action by the Attorney General to commence proceedings,' Congress made clear in section 242(g) of the Act, 8 U.S.C. § 1252(g) (Supp. IV 1998), that such prosecutorial discretion still exists. Moreover, the United States Supreme Court recently reaffirmed the Service's continuing prosecutorial discretion, including the discretion to decline to institute proceedings `for humanitarian reasons or simply for its own convenience.' Reno v. Arab-American Committee, 525 U.S. 471, 484 (1999). And, in response to a jointly posed question by 24 members of the United States Congress whether the Service believed that the 1996 amendments to the Act eliminated this discretion, the Assistant Attorney General of the United States, Office of Legislative Affairs, responded that the Service's fundamental authority to exercise prosecutorial discretion to decide whether or not to commence removal proceedings was not altered by enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546. The Assistant Attorney General recognized further that, in view of the expanded classifications of criminal aliens for whom no statutory relief from removal exists, the exercise of such discretion can be `the only means for averting the extreme hardship associated with certain removal cases.' Letter from Robert Raben, Assistant Attorney General, Office of Legislative Affairs, to Congressman Barney Frank (Jan. 19, 2000), reprinted in 77 Interpreter Releases, No. 7, Feb. 14, 2000, app. I, at 217-20. "We do not raise this issue to suggest that the exercise of such discretion was or is warranted in this case. We lack jurisdiction over this issue and, in any event, the record before us is far from complete. The Service may choose to further examine this issue on remand. However, there should be no question within the Service that prosecutorial discretion, and its important concomitant responsibilities, continues to exist." In re Mengisteab BAHTA, supra. The remedial provisions for relief from deportation generally should be read generously both in order to accomplish the purpose for which they are designed and to avoid precluding the Attorney General from considering the exercise of his discretionary power to alleviate hardships. Wadman v. I.N.S., 329 F.2d 812, 816-17 (9th Cir. 1964); Do v. Esperdy, 309 F.2d 467, 473-74 (2d Cir. 1962). The defense contends that the affidavit of the defendant's common law wife -- demonstrating extreme hardship to their young United States citizen child and her other United States citizen children -- satisfies the prejudice requirement for this motion. /// ///

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/// /// III. CONCLUSION For these reasons and any further reasons which come to this Court's attention prior to or at the time of the hearing of this motion, counsel respectfully requests that this Court grant this motion. Respectfully submitted,

Dated: April 6, 2008

s/Gerald T. McFadden GERALD T. McFADDEN, Attorney for Defendant RAUL ARREOLA MONTES E-mail: [email protected]

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