Free Motion to Dismiss - District Court of California - California

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1 BARRY J. PORTMAN 2 MANUEL U. ARAUJO, 3 160 West Santa Clara Street, Suite 575 San Jose, CA 95113 4 Telephone: (408) 291-7753 5 Attorneys for Defendant 6 VERGARA-PEREZ 7 8 9 10 11 12 UNITED STATES OF AMERICA, 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28
v. Plaintiff, ) ) ) ) ) ) ) ) ) ) ) No. CR 07-00595- JF NOTICE OF MOTION; DEFENDANT OSIEL VERGARA-PEREZ'S MOTION TO DISMISS INDICTMENT DUE TO UNLAWFUL DEPORTATION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS; EXHIBITS Hearing Date: Hearing Time: June 18, 2008 9:00 a.m. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION Assistant Federal Public Defender Federal Public Defender

15 OSIEL VERGARA-PEREZ,
Defendant.

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IV. D. E. F. B. C. III.

TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii MOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 MEMORANDUM OF POINTS AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 II. FACTUAL AND PROCEDURAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . 4 A. B. C. Background and Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Convictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Removal Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. The Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. The Removal Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3. The Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6 6 6 7 7 8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. Legal Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. Due Process and Collateral Challenges to Deportations in Criminal Prosecutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2. 8 U.S.C. § 1326(d) and Collateral Challenges to Deportations in Criminal Prosecutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Mr. Vergara-Perez Was Not Convicted of an Aggravated Felony. . . . . . . 10 The IJ Erred and Violated Mr. Vergara-Perez's Due Process Rights in Ordering Him Removable Without Advising Him of His Eligibility for Cancellation of Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 1. 2 Section INA § 240A(a)(3) Relief . . . . . . . . . . . . . . . . . . . . . . . . . 12 The IJ Erred in Failing to Advise Mr. Vergara-Perez of His Eligibility for § 240A(a)(3) Relief . . . . . . . . . . . . . . . . . . . . . . . . . 13

Mr. Vergara-Perez Exhausted His Administrative Remedies . . . . . . . . . . 13 Mr. Vergara-Perez Was Deprived of a Meaningful Opportunity for Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Mr. Vergara-Perez Suffered Prejudice as a Result of the Defect in his Removal Hearing Because He Had Plausible' Ground for Relief from Deportation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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TABLE OF AUTHORITIES FEDERAL CASES Matter of Arreguin, 21 I. & N. Dec. 38 (BIA 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Barker v. Wingo, 407 U.S. 514 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Brewer v. Williams, 430 U.S. 387 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Matter of Edwards, 20 I. & N. Dec. 191 (BIA 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Foroughi v. INS, 60 F.3d 570 (9th Cir.1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Giorgiu v. INS, 90 F.3d 374 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 2002 WL 993589 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Matter of KVD, 22 I. & N. Dec. 1163 (BIA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Kahn v. INS, 36 F.3d 1412 (9th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Lopez v. Gonzales, 595 U.S. 47, 127 S. Ct. 625 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Pablo v. INS, 72 F.3d 110 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Rivers v. Roadway Express, Inc., 511 U.S. 298, 114 S. Ct. 1510, 128 L. Ed. 2d 274 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Tawadrus v. Ashcroft, 364 F. 3d 1069 (9th Cir. 2004)....................................................................16 United States v. Aguirre-Tello, 324 F.3d 1181 (10th Cir. 2003), reversed on other grounds, 353 F.3d 1199 (10th Cir. 2004) (en banc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 United States v. Ahumada-Aguilar, 295 F.3d 943 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 United States v. Arce-Hernandez, 163 F.3d 559 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ii

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United States v. Arrieta, 224 F.3d 1076 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15, 18 United States v. Corrales-Beltran, 192 F.3d 1311 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Esparza-Ponce, 193 F.3d 1133 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Estrada-Torres, 179 F.3d 776 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Figueroa-Campos, 494 F.3d 1211 (9th Cir. July 24, 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 United States v. Godinez-Rabadan, 289 F.3d 630 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 United States v. Hinajosa-Lopez, 130 F.3d 691 (5th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States v. Jimenez-Marmolejo, 104 F.3d 1083 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16, 14, 17 United States v. Mendoza-Lopez, 481 U.S. 828 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 12, 13 United States v. Muro-Inclan, 249 F.3d 1180 (9th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 20 United States v. Ubaldo-Figueroa, , 347 F.3d at 718, 722 (9th 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17, 18 United States v. Ubaldo-Figueroa, 364 F.3d 1042 (9th Cir. 2004) (internal quotations omitted) 8, 9, 12, 15 FEDERAL STATUTES 8 C.F.R. § 240.49(a) (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 8 C.F.R. 242.17 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 6 U.S.C. § 202 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 6 U.S.C. § 557 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 8 U.S.C. § 212(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 8 U.S.C. § 1101(a)(43)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9

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8 U.S.C. § 1182(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 8 U.S.C. § 1229a(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11 8 U.S.C. § 1326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7, 8 INA § 240A(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 11 INA § 240A(a), Title 8 U.S.C. § 1229a(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 6, 10 Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-597 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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BARRY J. PORTMAN Federal Public Defender MANUEL U. ARAUJO, Assistant Federal Public Defender 160 West Santa Clara Street, Suite 575 San Jose, CA 95113 Telephone: (408) 291-7753 Attorneys for Defendant VERGARA-PEREZ

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ) ) ) ) ) ) ) ) ) ) ) No. CR 07-00595- JF NOTICE OF MOTION; DEFENDANT OSIEL VERGARA-PEREZ'S MOTION TO DISMISS INDICTMENT DUE TO UNLAWFUL DEPORTATION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS; EXHIBITS Hearing Date: June 18, 2008 Hearing Time: 9:00 a.m. TO: UNITED STATES ATTORNEY AND ASSISTANT UNITED STATES ATTORNEY BENJAMIN T. KENNEDY:

11 UNITED STATES OF AMERICA, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
v. OSIEL VERGARA-PEREZ, Defendant. Plaintiff,

PLEASE TAKE NOTICE that on June 18, 2008, at 9:00 a.m., or as soon thereafter as counsel may be heard, in the courtroom of the Honorable Jeremy Fogel, United States District Court Judge, defendant OSIEL VERGARA-PEREZ, will bring on for hearing the following motion:

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MOTION

Defendant Osiel Vergara-Perez, by and through his attorney of record, Assistant Federal Public Defender Manuel U. Araujo, hereby moves this Honorable Court for an Order dismissing the indictment based upon a denial of due process because the Immigration Judge failed to advise Mr. Vergara-Perez of statutory right to seek relief from removal pursuant to Cancellation of Removal for Certain Permanent Residents ("Cancellation"). INA § 240A(a), Title 8 U.S.C. § 1229a(a). This failure to advise Mr. Vergara-Perez of his statutory right and the failure to provide him an opportunity to present the claim, meaningfully deprived him of his right to judicial review.

10 Because of the denial of due process, Mr. Vergara-Perez's order of removal cannot be used as 11 evidence in this criminal prosecution for being "found in" the United States without permission 12 after having been removed from this country. Without this evidence, the government cannot 13 demonstrate an essential element of the offense charged. Accordingly, dismissal is appropriate. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
2 DATED: May 15, 2008 By_______/S/___________________ Manuel U. Araujo, Assistant Federal Public Defender This motion is based upon the attached memorandum of points and authorities, declarations, exhibits, all files and records in this case, and such further evidence and argument as may be presented at the hearing on this motion. Respectfully submitted,

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1

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

The Immigration Court on July 31, 1998, ordered Mr. Osiel Vergara-Perez (hereinafter "Mr. Vergara-Perez") removed from the United States because he had been convicted of a drug felony under the law of Colorado. However, Mr. Vergara-Perez's July 28, 1998, drug conviction was for simple possession which under the law as it stood in 1998, was not a felony under Federal Law, and not an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B) 1. Because his state conviction was not a drug trafficking offense, he was eligible for the remedy of a Cancellation of Removal from the United States. However, Mr. Vergara-Perez was not given the opportunity to

13 apply for a cancellation of removal and was ordered removed from the United States.
Mr. Vergara-Perez is charged with one count of being found in the United States after deportation/removal, in violation of 8 U.S.C. § 1326. A defendant charged with a violation of 8 U.S.C. § 1326 may collaterally challenge the removal order on which the criminal charge against him is based if his due process rights were violated and he suffered prejudice as a result thereof. Mr. Vergara-Perez cannot be convicted of violating 8 U.S.C. § 1326 because a defect in his underlying removal proceedings violated his right to due process.

Pursuant to 8 U.S.C. § 1326(d) and the cases interpreting that statutory subsection, in order to successfully challenge an underlying removal order in the criminal proceeding, the following must be true: (1) the defendant either exhausted his administrative remedies or did not knowingly and intelligently waive his appellate rights, (2) the defendant was effectively deprived of judicial review of the order of removal, and (3) the defect at his removal hearing prejudiced him.

28 controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as
defined in section 924(c) of Title 18). 3

8 U.S.C. § 1101(a)(43)(B), the term aggravated felony means ­ illicit trafficking in a

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At the time of his July 31, 1998, hearing Mr. Vergara-Perez had been in the United States for thirteen years, and had been lawfully in the United States for nearly nine years. Nevertheless, the Immigration Judge (IJ) failed to advise Mr. Vergara-Perez that he was eligible for relief from deportation in the form of a Cancellation of Removal pursuant to INA § 240A(a) of the Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1229a(a) (hereinafter, "Cancellation".) Mr. Vergara-Perez had sufficient equities in favor of Cancellation of removal,

7 but he was not given the opportunity to present and develop said equities because of the 8 Immigration Judge's failure to properly advise him. The failure to properly advise him of his 9 statutory right to seek cancellation of removal deprived him of his right to due process . 10 11
The failure of the immigration judge to advise Mr. Vergara-Perez of his eligibility for relief

12 not only violated his due process rights, but also relieved him of his obligation to exhaust his 13 administrative remedies and deprived him of a meaningful opportunity for judicial review. 14 Moreover, Mr. Vergara-Perez was prejudiced by the error at his removal proceeding, because it is 15 plausible ­ indeed it is likely, given the substantial equities in his favor ­ that he would have been 16 granted relief, if only he had been given the opportunity to apply. 17 18 19 20 21 22 23 24 25 A. 26
Background and Status Mr. Vergara was born on September 19, 1969, in Quimichatenco, Mexico [Exhibit A: Birth II. FACTUAL AND PROCEDURAL BACKGROUND The underlying removal violated Mr. Vergara-Perez's constitutional rights and cannot be used to prove an essential element of the charged offense, namely, a valid removal/deportation. Accordingly, the Indictment cannot stand, and the Court should dismiss it with prejudice.

27 Certificate and translation.] Mr. Vergara first entered the United States on or before January 1985. 28 Mr. Vergara was first admitted as a Temporary Resident Status on or about February 23, 1989,
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through the Special Agricultural Worker program ("SAW") [Exhibit B: Application for Temporary Resident Status.] Mr. Vergara's immigration status was ultimately adjusted to that of a Lawful Permanent Resident (commonly knows as a "green-card holder") on December 1, 1990 through SAW in Detroit, Michigan [Exhibit C.]

In 1998, Mr. Vergara-Perez had been a lawfully admitted for permanent residence for over seven years. Nothing in his file indicates that he had not continuously resided in the United States for seven years, and as Mr. Vergara-Perez's declaration points out, he had lived in the United States from the time he arrived in 1985, until his 1998, removal. [Exhibit D.] In fact, it appears that Mr. Vergara-Perez had been in lawful status for approximately nine years since obtaining Temporary Resident Status. [Exhibit B and Exhibit C.]

Mr. Vergara registered for Selective Service on September 28, 1988, even before obtaining lawful status in the United States. [Exhibit E.] It appears from the Social Security Administration Earnings Records that by July 31, 1998, Mr. Vergara had relatively continuous lawful gainful employment during his residency in the United States. [Exhibit F.] Additionally, the 1998 record of the removal proceeding contains no reference to a criminal conviction other than the single conviction that led to his arrest and removal proceedings in July 1998. [Exhibit G: Declaration of César R. Ternieden.]

Lastly, in 1998, Mr. Vergara had relevant family ties in the United States, from which a sister Maria Elvia Flores, is a Untied States citizen [Exhibit H]; a brother, Areli Vergara, is a Lawful Permanent Resident [Exhibit I]; and a sister, Urbana Molina, is a Lawful Permanent Resident [Exhibit J]. Equally important is the fact that Mr. Vergara-Perez has lived continuously in the United States since the age of fifteen years. He was a long term Lawful Permanent Resident in the United States, at the time of his removal.

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B. Convictions

On or about June 9, 1998, Mr. Vergara-Perez was charged in connection with two counts in the Second Judicial District Court at Denver, Colorado: Count I: Distribution of a Controlled Substance, to wit, Heroin, in violation of C.R.S. § 18-18-405(1)(a) and (2)(a)(I) (a class 3 Felony); and Count II: Possession of a Controlled Substance, to wit, Heroin, in violation of C.R.S. § 18-18405(1)(a) and (2)(a)(I) (a class 3 Felony) [Exhibit L: Copy of Complaint.] On July 8, 1998, Mr. Vergara-Perez pled guilty to Count II only, that is, possession of a Controlled Substance. [Exhibit M: A certified transcript of the guilty plea dated July 8, 1998.] The Court placed him on 5 years of probation. [Exhibit N, a certified transcript of July 28, 1998 sentencing hearing.] The Court dismissed Count I which alleged distribution of a controlled substance. Although Mr. VergaraPerez was informed by Hon. Lynn Martinelli that his criminal conviction "will be a felony drug conviction," would be subject to deportation and that "[t]he condition of [his] probation would be that [he] cooperate in the deportation proceeding," Mr. Vergara-Perez was not informed of any further substantive right at his anticipated immigration proceedings [Exhibit N, pg. 3]. As more fully discussed herein, the conviction for the simple possession of heroin, is not a drug trafficking felony which precludes an alien from seeking relief from removal pursuant to a Cancellation of Removal under INA § 240A(a)2.

C. The Removal Proceeding

1.

The Charges

On June 10, 1998, an Immigration Detainer was lodged with the Denver County Jail to detain

25 the Mr. Vergara-Perez. [Exhibit O: Form I-247.] On July 14, 1998, a Notice to Appear was served 26 on him. [See Exhibit P, Notice to Appear (Form I-265). The Record of Deportable Alien charged 27 28
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Title 8 U.S.C. § 1229a(a). 6

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that Mr. Vergara-Perez was subject to removal for having been convicted of possession of a controlled substance. [See Exhibit Q.] No additional convictions were alleged. [See Exhibit Q.]

2.

The Removal Hearings

On July 31, 1998, Mr. Vergara-Perez appeared without counsel before an IJ. The Immigration Judge conducted a group hearing with several other aliens. The Immigration Judge specifically informed all those present: "Those with drug conviction are not eligible for voluntary departure. And even though you are permanent residents, there is no waiver available to allow you to keep

10 your green card. . . . So if any one want to apply for voluntary departure you may raise your hand, 11 or if you have a question about your immigration status or about getting a visa through a family 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28
The audio tape recording of the hearing will be lodged as Exhibit K, should the Court desire to hear the recording. 7
3

member you may raise your hand3." [See Exhibit R: pg. 6, Recorded Tape of Hearing dated July 31, 1998.] Mr. Vergara specifically asked the Immigration Judge: "Can I come back to the U.S. if I get married because I have my fiancee here . . . ." [See Exhibit R, pg. 7.] The Immigration Judge answered: "No, Sir, this is a felony drug conviction and there is no relief available to you and there is no possibility for you to come back as long as that [the state felony drug conviction] is on your record." [Id. at page 7.] This advisement, as will be discussed herein, was in error and clear violation of the law as it stands today and as it stood in 1998.

3.

The Appeal

Once ordered removed, Mr. Vergara was informed of his right to appeal and he reserved that

24 right. However, on August 4, 1998, Mr. Vergara, through Deportation Officer Homero Mendoza,
waived his right to appeal. [Exhibit S.] Mr. Vergara's waived his right to appeal because upon reflection and based on the Immigration Judge's advisement that he had no remedy from

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1 2 3 4 5 6 7 8 9 10 12 13 14

deportation due to his felony drug conviction he concluded an appeal was without merit. Therefore, he decided to waive his right to appeal. [Exhibit D, ¶ 10.] However, had he been correctly advised that for Immigration purposes his July 8, 1998, conviction did not exclude him from discretionary relief from removal, he would have petitioned for Cancellation of removal and if his petition had been denied, he would have proceeded forward with his appeal. [Exhibit D, ¶ 10.]

4.

Removal

On August 4, 1999, Mr. Vergara-Perez was removed from the United States. [See Exhibit T,

11 Warrant of Removal.] Thereafter, Mr. Vergara-Perez returned to the United States.
III. ARGUMENT Legal Standards

15 A. 16 17 18 19
1.

Due Process and Collateral Challenges to Deportations in Criminal Prosecutions

The elements of the offense of being "found in" the United States in violation of 8 U.S.C. §

20 1326 are: (1) the defendant is an alien; (2) the defendant was deported/removed from the United 21 States; and (3) the defendant voluntarily reentered and remained in the United States without the
4 22 consent of the Attorney General. United States v. Godinez-Rabadan, 289 F.3d 630, 632 (9th Cir.

23 2002). In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Supreme Court held that a 24 defendant charged under § 1326 may collaterally attack the validity of his predicate deportation if 25 the proceeding did not conform with due process. Id. at 838-39. The Court found that due process 26
4

27 were transferred to the Secretary of the Department of Homeland Security (DHS) in March 2003. See 6 U.S.C. § 202. See also 6 U.S.C. § 557 (providing that relevant references in Federal law 28 entrusting other departments with functions which were transferred to the DHS via the Homeland
Security Act of 2002 are deemed transferred to Secretary of DHS). 8

The Attorney General's protection of the borders and immigration enforcement function

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1 mandates the permitting of "a collateral challenge to the use of a deportation proceeding as an 2 element of a criminal offense . . . where the deportation proceeding effectively eliminates the right 3 of the alien to obtain judicial review." Id. The reason for allowing the collateral attack is that the 4 determination in the "administrative proceeding is to play a critical role in the subsequent 5 imposition of a criminal sanction." Id. at 837-38. The Supreme Court explained that if Congress 6 envisioned that "a court may impose a criminal penalty for [illegal] reentry after any deportation, 7 regardless of how violative of the rights of the alien the deportation proceeding may have been, the 8 statute does not comport with the constitutional requirement of due process." Id. 9 10 11 12 13
Following Mendoza-Lopez, Congress enacted 8 U.S.C. § 1326(d), which imposes certain pre2. 8 U.S.C. § 1326(d) and Collateral Challenges to Deportations in Criminal Prosecutions

14 requisites for collateral attacks to the underlying deportation(s) in illegal re-entry prosecutions. 15 That provision requires that such collateral attacks will succeed where the defendant 16 administratively appealed his deportation order, see 8 U.S.C. § 1326(d)(1)), was deprived of 17 meaningful judicial review of the deportation, see 8 U.S.C. § 1326(d)(2), and entry of the 18 deportation order was fundamentally unfair. See 8 U.S.C. § 1326(d)(3). 19 20
"An underlying removal order is `fundamentally unfair' if: (1) [a defendant's] due process

21 rights were violated by defects in his underlying deportation proceeding, and (2) he suffered 22 prejudice as a result of the defects." United States v. Ubaldo-Figueroa, 364 F.3d 1042, (9th Cir. 23 2004) (as amended) (quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 24 1998)) (internal quotations omitted). 25 26 28
9 For purposes of analytic clarity, the above requirements will be discussed in the following

27 order: the defendant was not convicted of an aggravated felony, his due process rights were

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1 violated, he is excused from exhaustion of his administrative remedies, he was deprived of judicial 2 review, and he was prejudiced. 3 4 B. Mr. Vergara-Perez Was Not Convicted of an Aggravated Felony. 5 6
Mere possession of a controlled substance is not a felony under the Controlled Substances Act
5 7 because it is not an "illicit trafficking" offense . Lopez v. Gonzales, 595 U.S. 47, 127 S.Ct. 625, 6 8 628-30 and 633 (2006) (finding aiding and abetting the possession of cocaine did not constitute an

9 aggravated felony because mere possession is not a felony under the Controlled Substances Act). 10 The Supreme Court's decision in Lopez, id, was a case of statutory interpretation. As such, its 11 holding did not change the law, and its analysis is equally applicable to the removal proceeding 12 which took place in 1998. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 114 S.Ct. 1510, 128 13 L. Ed.2d 274 (1994). 14 15
Additionally, the Board of Immigration Appeal's decisional law as it existed on July 31, 1998,
7 16 was consistent with the subsequent holding in Lopez v. Gonzales, id . The available precedent

17 was Matter of Davis, 20 I. & N. Dec. 536 (BIA 1992). "In Matter of Davis, the BIA held that a 18 state conviction of a drug offense must be punishable under one of the three Acts as a federal 19 felony, in order for the offense to qualify as an aggravated felony. Therefore, an offense 20 punishable only as a misdemeanor under federal law would not trigger removal as an aggravated 21 felony drug trafficking offense. Based on this holding, the BIA held in Matter of LG, [21 I. & N. 22 23 24 25 26 27 28
5 6

See, note 1, id.

The Ninth Circuit confirmed in United States v. Figueroa-Campos, 494 F.3d 1211 (9th Cir. July 24, 2007), that under Lopez, id, simple possession of drugs is not an aggravated felony for sentencing under U.S.S.G. § 2L1.2. It was not until 2002, In Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 2002 WL 993589 (2002) (announcing that BIA decisions would conform to the applicable Circuit law), that the BIA reversed itself and took the position that a state felony drug conviction for simple possession was an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). However, at the time of the 1998, hearing, the BIA was clear that a state felony conviction for simple possession was not an aggravated felony under § 1101(a)(43)(B). 10
7

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1 Dec. 89 (BIA 1995)] that a state felony simple possession offense that was a misdemeanor under 2 the Controlled Substances Act ("CSA") was not an aggravated felony for immigration purposes." 3 Norton Tooby and Joseph Justin Rollin, "Aggravated Felonies," 444 (2006 Ed.) (emphasis in the 4 original). 5 6
As late as 1999, the BIA reaffirmed this principle in Matter of KVD, 22 I. & N. Dec. 1163 (BIA

7 1999). In Matter of KVD, the Fifth Circuit had held that a state felony drug conviction, which was 8 not a federal felony, was to be considered an aggravated felony for the purposes of calculating the 9 sentence in the criminal case of re-entry of an alien. In the Matter of KVD, the BIA distinguished 10 the term "felony" in the sentencing context from the removal context and declined to find the Fifth
8 11 Circuit's decision in U.S. v. Hinajosa-Lopez , controlling.

12 13
Given the state of the law as it stood in 1998, the Immigration Judge did not need to be

14 clairvoyant, but only reasonably informed on what constituted an aggravated felony under the 15 BIA's decisional law. The IJ's failure to recognize that simple possession of heroin is not an 16 aggravated felony resulted in the IJ's failure to properly advise Mr. Vegara-Perez of his right to 17 apply for discretionary relief from removal. 18 19
Mr. Vergara-Perez pled guilty to a simple possession of a controlled substance, for which he

20 received less than a year in custody. [Exhibit M: A certified transcript of the guilty plea dated July 21 8, 1998.] He was a Lawful Permanent Resident for over seven years when he had his removal 22 hearing. Under these circumstances the IJ should have informed him of his right to seek a 23 cancellation of removal. 24 25 C. The IJ Erred and Violated Mr. Vergara-Perez's Due Process Rights in Ordering Him 26 27 28
8

Removable Without Advising Him of His Eligibility for Cancellation of Removal.

130 F.3d 691 (5th Cir. 1997). 11

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1 2 3

1.

Section INA § 240A(a)(3)9 Relief

On September 30, 1996, Congress passed the Illegal Immigration Reform and Immigrant

4 Responsibility Act ("IIRIRA"). Section 304(b) of IIRIRA abolished § 212(c) relief altogether, see 5 Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-597 (1996) (repealing 8 U.S.C. § 1182(c).) 6 Congress instituted a new form of relief from removal in the form of Cancellation of Removal for
10 7 Certain Permanent Residents ("Cancellation"). INA § 240A(a) , 8 U.S.C. § 1229a(a). A Lawful

8 Permanent Resident is eligible for a discretionary grant of Cancellation if the alien a) has been an 9 alien lawfully admitted for permanent residence for not less than 5 years, b) has resided in the 10 United States continuously for 7 years after having been admitted in any status, and c) has not been 11 convicted of any aggravated felony. 12 13
At the time of his removal proceeding on February 4, 1998, Mr. Vergara-Perez had resided

14 continuously in the United States for approximately thirteen years. [Exhibit G, at 2.] For more 15 than nine of those years, he had been a lawful resident. In addition, Mr. Vergara-Perez had been a 16 Lawful Permanent Resident (LPR) for over seven years, as he became a LPR on December 1, 17 1990. "An alien may continue to accrue time toward the . . . seven-year requirement while the 18 alien appeals a deportation decision, even if that alien has conceded deportability at the 19 immigration hearing." Jimenez-Marmolejo, 104 F.3d 1083, 1085-86 (9th Cir. 1996) (citing 20 Foroughi v. INS, 60 F.3d 570, 572 (9th Cir.1995)). By the time of his actual deportation in July 21 31, 1998, Mr. Vergara-Perez had established lawful residency of almost nine years and LPR status 22 of over seven years. As such, there is no question that Mr. Vergara-Perez satisfied the seven-year 23 lawful continuous residency requirement of § 240A(a). 24 25 27
9

Mr. Vergara-Perez also satisfied § 240A(a)(3)'s requirement of serving less than one year

26 of imprisonment on his conviction. Mr. Vergara-Perez had sustained only one conviction, the July 28
10

8 U.S.C. § 1229a(a)(3). 8 U.S.C. § 1229a(a). 12

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1 8, 1998, conviction for simple possession of heroin. The court imposed less than one year in 2 custody. [Exhibits M and N: pg. 3.] 3 4 5 6 7
A deportation/removal hearing is defective if the deportee is apparently eligible for relief 2 The IJ Erred in Failing to Advise Mr. Vergara-Perez of His Eligibility for § 240A(a)(3) Relief

8 from deportation/removal but the IJ misadvises him of his eligibility or fails to give an opportunity 9 to apply for such relief. See United States v. Leon-Paz, 340 F.3d 1003, 1005 (9th Cir. 2003). The 10 IJ had a mandatory duty to advise Mr. Vergara-Perez of his apparent eligibility for relief from 11 deportation. See 8 C.F.R. § 240.49(a) (1999); 8 C.F.R. 242.17 (1994) (repealed and recodified in 12 amended form in 8 C.F.R. § 240.49(a) (1999)). "The requirement that the Immigration Judge 13 inform an alien of his or her ability to apply for relief from removal is `mandatory,' and `[f]ailure 14 to so inform the alien [of his or her eligibility for relief from removal] is a denial of due process 15 that invalidates the underlying deportation proceeding.'" United States v. Ubaldo-Figueroa, 364 16 F.3d 1042, 1049-50 (9th Cir. 2004) (as amended) (quoting United States v. Muro-Inclan, 249 F.3d 17 1180, 1183 (9th Cir. 2001) (quoting United States v. Arrieta, 224 F.3d 1076, 1079 (9th 18 Cir.2000))). See also United States v. Lopez-Vasquez, 1 F.3d 751, 754 (9th Cir. 1993) (concluding 19 that if a waiver is not considered and intelligent, the alien "has been deprived of judicial review in 20 violation of due process.") 21 22
Here, the IJ failed to advise Mr. Vergara-Perez that he was eligible for relief from removal

23 pursuant to § 240A(a)(3). Thus, the IJ's failure to advise Mr. Vergara-Perez of his right to relief 24 from removal pursuant to § 240A(a)(3) failed to give him an opportunity to present an application 25 for such relief. These failures constituted a violation of his due process right. 26 27 D. 28
13 Mr. Vergara-Perez Exhausted His Administrative Remedies

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1

The Ninth Circuit has consistently interpreted § 1326(d)(1) in light of the Supreme Court's

2 decision in Mendoza-Lopez. Under Mendoza-Lopez, a failure to appeal does not matter in a case 3 like this. That is because a deportee's waiver of appeal must be both "considered and intelligent." 4 Mendoza-Lopez, 481 U.S. at 840. If the decision not to appeal, is not "considered and intelligent," 5 then the waiver violates the deportee's due process rights and is invalid. Id. 6 7
A deportee cannot waive his right to appeal in a considered and intelligent way if he does not

8 know that he is eligible for relief from deportation. See United States v. Arrieta, 224 F.3d 1076, 9 1079 (9th Cir. 2000) (defendant's waiver of appeal of deportation order was invalid; immigration 10 judge never told him of eligibility for relief from deportation under 8 U.S.C. § 212(h)). For this 11 reason, the Ninth Circuit has repeatedly found a waiver of appellate rights invalid where an 12 immigration judge failed to tell a deportee of a possible ground for relief. See, e.g., Ubaldo13 Figueroa, supra; Arrieta, id; Jimenez-Marmolejo, id. Indeed, the Court has explicitly stated that a 14 deportee's waiver is not considered and intelligent "when the record contains an inference that [he] 15 is eligible for relief from deportation, but the Immigration Judge fails to advise [him] of this 16 possibility and give him the opportunity to develop the issue." United States v. Muro-Inclan, 249 17 F.3d 1180, 1182 (9th Cir. 2001); see also Leon-Paz, 340 F.3d at 1005 (same) (quoting Muro18 Inclan, supra); United States v. Pallares-Galan, 359 F.3d 1088, 1096 (9th Cir. 2004) (same) 19 (quoting Muro-Inclan, supra). "The exhaustion requirement of 8 U.S.C. § 1326(d) cannot bar 20 collateral review of a deportation proceeding when the waiver of right to an administrative appeal 21 did not comport with due process." Muro-Inclan, 249 F.3d at 1183; see also Ubaldo-Figueroa, 22 347 F.3d at 726 (defendant collaterally attacking deportation is "exempted from the exhaustion 23 requirement . . . because the IJ did not inform him that he was eligible for relief from 24 deportation"); United States v. Estrada-Torres, 179 F.3d 776, 780-81 (9th Cir. 1999) (per curiam) 25 (explicitly acknowledging that Due Process Clause trumps § 1326(d)(1) exhaustion requirement) 26 (citing Mendoza-Lopez, 481 U.S. at 840, 107 S. Ct. at 2156), overruled on other grounds, United 27 States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc); United States v. Corrales28 Beltran, 192 F.3d 1311, 1316 (9th Cir. 1999) (deportee who was charged after effective date of §
14

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1 1326(d) claimed defective appellate waiver; circuit court ignored exhaustion requirement, applied 2 Mendoza-Lopez analysis); United States v. Esparza-Ponce, 193 F.3d 1133, 1135 & n. 3 (9th Cir. 3 1999) (same); Pallares-Galan, 359 F.3d at 1096 (same). 4 5
Like the defendants in the cases cited above, Mr. Vergara-Perez made an unconsidered and

6 uninformed appellate waiver. The record before the IJ contained facts from which the IJ should 7 have inferred that Mr. Vergara-Perez was eligible for relief from removal, but the Immigration 8 Judge failed to advise him of this possibility and failed to give him the opportunity to develop the 9 issue. The IJ had before him, Mr. Vergara-Perez, an alien whom the IJ knew was a Lawful 10 Permanent Resident since December 1990, with at least seven years of LPR status. [Exhibit R: 11 Transcript of July 31, 1998, Removal Proceeding.] The IJ also knew (and if he did not know, 12 should have inquired) that the Denver Superior Court sentence imposed less than one year in 13 custody on Mr. Vergara-Perez on his drug conviction. The IJ also knew that Mr. Vergara-Perez 14 wished to legally remain in the United States by his question of whether he could remain in the
11 15 United States if he married his fiancee . [Exhibit R: pg. 7.] However, the IJ never told him that

16 he was eligible for § 240A(a)(3) relief. Mr. Vergara-Perez's did not seek § 240A(a)(3) relief 17 because he was not made aware of said remedy. [Exhibit D: Declaration of Osiel Vegara-Perez: ¶ 18 10.] Thus, Mr. Vergara-Perez waived his administrative appellate right with respect to § 19 240A(a)(3) without ever having received the critical advice that he needed to make his waiver 20 considered and intelligent. Put another way, because the IJ did not tell him that he was eligible for 21 § 240A(a)(3) relief, Mr. Vergara-Perez could not make a considered and intelligent decision about 22 whether to apply for that relief, and he could not make a considered and intelligent decision about 23 whether to appeal the IJ's removal order. See e.g., Pallares-Galan, supra; Arrieta, supra; Jimenez24 Marmolejo, supra. For this reason, under Mendoza-Lopez, Mr. Vergara-Perez is not required to 25 have exhausted his administrative remedies. 26 27 28
11

"Can I come back to the U.S. if I get married because I have my fiancée here . . . ." Id. Immigration Judge answered: "No, Sir, this is a Felony drug conviction and there is no relief available to you and there is no possibility for you to come back as long as that is on your record." Id. [Exhibit R, pg. 7.] 15

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1 E.Mr. Vergara-Perez Was Deprived of a Meaningful Opportunity for Judicial Review 2 3
A deportee has been deprived of a meaningful opportunity for judicial review if he entered a

4 defective waiver of his right to administratively appeal his deportation order. See Pallares-Galan, 5 359 F.3d at 1096 (finding defendant's waiver of his right to appeal was not "considered and 6 intelligent" and "deprived [him] of his right to judicial review" under § 1326(d)(2)). "[A]n alien 7 who is not made aware that he has a right to seek relief necessarily has no meaningful opportunity 8 to appeal the fact that he was not advised of that right." Arrieta, 224 F.3d at 1079 (citation 9 omitted). See also United States v. Arce-Hernandez, 163 F.3d 559, 563 (9th Cir. 1999) (same). 10 11
The government -- not the alien -- bears the full burden of showing that a waiver was

12 considered and intelligent. See United States v. Lopez-Vasquez, 1 F.3d 751, 754 (9th Cir. 1993). 13 In fact, "it [is] incumbent upon the [government] to prove an intentional relinquishment of a 14 known right or privilege" to judicial review by clear and convincing evidence. Id. (quoting 15 Brewer v. Williams, 430 U.S. 387, 404 (1977)). Furthermore, a court, in determining whether the 16 government has met this burden, must indulge every reasonable presumption against the waiver. 17 Lopez-Vasquez, 1 F.3d at 754 (quoting Barker v. Wingo, 407 U.S. 514, 525 (1972)). If the waiver 18 is not considered and intelligent, the alien "has been deprived of judicial review in violation of due 19 process." Lopez-Vasquez, 1 F.3d at 754. 20 21
Here, as described above, Mr. Vergara-Perez was not told of his eligibility for § 240A(a)(3)

22 relief. As a result, he entered a defective waiver of his right to administratively appeal his removal 23 order. The unknowing and unintelligent waiver also deprived him of a meaningful opportunity for 24 judicial review. 25 26 F. 27 28
16 Mr. Vergara-Perez Suffered Prejudice as a Result of the Defect in his Removal Hearing Because He Had Plausible' Ground for Relief from Deportation.

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1

A defendant who collaterally attacks his underlying deportation must show that the error at

2 his deportation hearing prejudiced him. Where the error is a failure to inform him that he was 3 eligible for relief from deportation, he shows prejudice by demonstrating that he had a plausible 4 ground for relief from deportation ­ that is, that he had a plausible claim to the relief of which he 5 was not told. A defendant need not prove that he actually would have been granted relief; instead, 6 he "must only show that he had a `plausible' ground for relief from deportation." Ubaldo7 Figueroa, 364 F.3d at 1050 (citing Arrieta, 224 F.3d at 1079). 8
The defense recognizes, as it must, that § 240A(a)(3) relief is not automatic. In other

9 words, it is not enough just to be eligible. The deportee must also have been in a position to 10 persuade any IJ to exercise discretion in his favor by waiving deportation. See, e.g., Matter of 11 Edwards, 20 I&N Dec. 191 (BIA 1990) (describing factors to be weighed in exercise of 12 immigration judge's discretion). See also United States v. Jimenez-Marmolejo, 104 F.3d at 1086 13 (explaining that the standard is whether the defendant/respondent had a "plausible ground" for 14 relief). What Mr. Vergara-Perez must show in order to prove prejudice regarding his motion to 15 dismiss the Indictment, is that he might be able to show sufficient equities if he were in front of an 16 immigration judge, that is plausible grounds for relief. United States v. Ahumada-Aguilar, 295 17 F.3d 943, 951 (9th Cir. 2002) (citing Jimenez-Marmolejo, 104 F.3d at 1086). It is not necessary to 18 prove that this Court would have granted relief but only that Mr. Vergara-Perez had a chance of 19 convincing any immigration judge to grant relief. That is, would it be objectively reasonable for
12 20 any immigration judge to grant relief from removal?

21 22
In determining whether or not to grant discretionary relief, the BIA has enumerated several

23 factors to consider. Those considerations that favor relief include: residence of long duration in 24 this country (particularly when residence began at a young age); family ties within the United 25 26 27 28
The standard can also be understood as a deference standard. That is, if an immigration judge granted relief from removal, would such an order have been an abuse of discretion? If not an abuse of discretion, then the defendant has proven that he had plausible grounds for relief, regardless of whether some other IJ would have denied relief. See, Tawadrus v. Ashcroft, 364 F. 3d 1069 (9th Cir. 2004.) (Findings of fact are "conclusive unless any reasonable adjudicator would be compelled to conclude the contrary.") 17
12

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1 States; hardship to the petitioner or petitioner's family if relief is not granted; service in the United 2 States armed forces; a history of employment; the existence of business or property ties; evidence 3 of value and service to the community; proof of rehabilitation if a criminal record exists; and other 4 evidence attesting to good character. Pablo v. INS, 72 F.3d 110, 113 (9th Cir. 1995). 5 6 8 9
First, at the time of his removal hearing, Mr. Vergara-Perez had lawfully lived in this Given the opportunity, Mr. Vergara-Perez would have presented strong evidence with

7 respect to many of the factors mentioned above.

10 country for over thirteen years. [See Exhibit U, Declaration of Adalberta Perez-Berrum, ¶ 20:
13 11 Exhibit D, ¶ 6 .] Both the Ninth Circuit and the BIA have ruled that a deportee's long residence

12 weighs strongly in favor of relief. See Pablo, 72 F.3d at 113 (listing "residence of long duration" 13 as a factor that weighs towards the granting of discretionary relief). See also Jimenez-Marmolejo, 14 104 F.3d at 1086 (residence of twenty years considered a positive factor); Matter of Arreguin, 21 15 I&N Dec. 38 (BIA 1995) (twenty years of residence, since deportee's arrival at age of seventeen 16 considered a positive factor). 17 18
Mr. Vergara-Perez has also lived in this country since he was fifteen years old. [ See

19 Exhibit H, ¶¶ 7 and 8 and Exhibit I, ¶¶'s 9 and 10.] Residence in the United States since early 20 childhood is another factor that weighs in favor of relief. See Jimenez-Marmolejo, 104 F.3d at 21 1086 (deportee lived in United States from the age of three). Although Mr. Vergara-Perez was not 22 born in the United States, he has been here since he was a minor. 23 24
Second, Mr. Vergara-Perez has substantial family ties to the United States. The people

25 most important to him ( i.e., his siblings, aunts, uncles, cousins, and mother) live in the United 26 States. [See Declaration of Osiel Vergara-Perez, ¶¶ 7-9.] Indeed, the Ninth Circuit has reversed the 27
13

28 Vergara [Exhibit V]; Urbana Molina-Perez [Exhibit J]; Zoila Vergara [Exhibit W, ¶ 5]; And Areli
Vergara-Perez [Exhibit I, ¶¶ 9 and 10.] 18

See also the declarations of Maria Elvia Flores [Exhibit H, ¶¶ 7 and 8]; Maria Adenis

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1 denial of § 212(c) relief for a deportee who had been convicted of armed robbery because, among 2 other factors, the deportee's whole family lived in the United States. Giorgiu v. INS, 90 F.3d 374, 3 376-77 (9th Cir. 1996) (citations omitted). Similarly, the Court has reversed the denial of § 212(c) 4 relief for a deportee convicted of money laundering and drug offenses where the deportee lived 5 with a domestic partner and maintained close relationships with his partner's family. Kahn v. INS, 6 36 F.3d 1412, 1414 (9th Cir. 1994). The Court has also held that a defendant convicted of 7 attempted first-degree burglary of a dwelling showed a plausible ground for relief from deportation 8 by, among other factors, describing his substantial family ties, which were a "weighty factor" in his 9 favor. Ubaldo-Figueroa, 347 F.3d at 722, 735 (citation omitted). Mr. Vergara-Perez's family ties 10 to the United States are substantial. 11 12
Third, Mr. Vergara-Perez's family would suffer a tremendous financial and emotional

13 hardship if he were deported. See generally, Declarations of Maria Elvia Flores [Exhibit H, ¶ 9 ]; 14 Maria Adenis Vergara [Exhibit V: ¶¶ 3 - 9]; Urbana Molina-Perez [Exhibit J: ¶ 5]; Zoila Vergara 15 [Exhibit W, ¶¶'s 7 - 10]; And Areli Vergara-Perez [Exhibit I, ¶¶ 13-14.] The Vergara-Perez's are a 16 very close family, and Mr. Vergara-Perez's financial and emotional support is vital to the family's 17 well being. See id. See also Arrieta, 224 F.3d at 1082 (the Ninth Circuit held that the existence of 18 family ties in the United States is the most important factor in determining hardship) (citations 19 omitted). Additionally, the family has expressed that the hardship they would suffer as a result of 20 the family's separation is far more substantial than even the financial hardship. See generally, 21 Declarations of Maria Elvia Flores [Exhibit H, ¶ 9 ]; Maria Adenis Vergara [Exhibit V: ¶¶ 3 - 9]; 22 Urbana Molina-Perez [Exhibit J: ¶ 5]; Zoila Vergara [Exhibit W, ¶¶'s 7 - 10]; And Areli Vergara23 Perez [Exhibit I, ¶¶ 13-14. See also Arrieta, 224 F.3d at 1082 ("preservation of family unity" is a 24 "central factor" in the hardship inquiry). 25 26 28
19 Fourth, Mr. Vergara-Perez has been steadily employed during residency in the United

27 States. [See Exhibit F: Social Security Administration Earnings Records.] Additionally, he

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1 registered for the selective service [Exhibit F] which demonstrates his willingness to serve the 2 United States in time of need. 3 4
Fifth, Mr. Vergara-Perez is a valuable asset to his family and his in particular his parents

5 who live in the United States with his siblings. He had while working in the United States 6 provided financial support to his parents. [Exhibit U: Declaration of Adalberta Perez-Berrum, ¶¶'s
14 7 5 and 6 .]

8 9 11 12
It is true that Mr. Vergara-Perez had committed a crime, but § 240A(a)(3) by definition Sixth, Mr. Vergara-Perez did not have an extensive criminal record and at the time of his

10 removal hearing he had only one state felony conviction, not an aggravated felony.

13 assumes that a deportee had committed a crime -- even more, the statute assumed that the deportee 14 may have committed drug offense. The whole purpose of the section was to offer relief to legal 15 permanent residents who had committed such crimes. At the time of Mr. Vergara-Perez's guilty 16 plea in 1998, Congress had not excluded all persons convicted of simple drug possession. Thus, it 17 cannot be argued that Mr. Vergara-Perez's conviction would have caused the IJ to deny relief. See 18 United States v. Aguirre-Tello, 324 F.3d 1181, 1195-96 (10th Cir. 2003) (noting in case of 19 defendant with conviction for attempted murder that aggravated felony could not be an automatic 20 bar from discretionary relief when Congress chose not to make it so), reversed on other grounds, 21 353 F.3d 1199 (10th Cir. 2004) (en banc). 22 23
César R. Ternieden, an immigration law expert, opines that Mr. Vergara-Perez had very

24 strong positive factors in favor of § 240A(a)(3) relief, finding his equities to be more than enough 25 to obtain relief from deportation. [See Exhibit G: Declaration of César R. Ternieden, Esq., ¶¶ 3126 27
14

28 Vergara [Exhibit V: ¶¶ 3 - 9]; Urbana Molina-Perez [Exhibit J: ¶ 5]; Zoila Vergara [Exhibit W, ¶¶'s 7 - 10]; And Areli Vergara-Perez [Exhibit I, ¶¶ 13-14.]
20

See also generally, Declarations of Maria Elvia Flores [Exhibit H, ¶ 9 ]; Maria Adenis

Case 5:07-cr-00595-JF

Document 31

Filed 05/15/2008

Page 26 of 26

1 38.] He further opined that Mr. Vergara-Perez had a substantial probability of receiving such 2 relief. See Exhibit G: ¶ 38. 3 4
Section 240A(a)(3) was created for people who had committed crimes and who,

5 nevertheless, deserved to remain in the United States. The question for this Court to decide is 6 whether relief from deportation was "plausible" in Mr. Vergara-Perez's case. In light of the 7 substantial equities in his favor, Mr. Vergara-Perez respectfully submits that this question should 8 unequivocally be answered in the affirmative. 9 10
It appears from the record before this Court that an IJ could have concluded that Mr.

11 Vergara-Perez's potential claim for relief from deportation would be "plausible," therefore, Mr. 12 Vergara-Perez "is entitled to the dismissal of his indictment." United States v. Pallares-Galan, 13 359 F.3d at 1103. 14 15 16 17 19 20 21 22 23 24 25 26 27 28
21 DATED: May 15, 2008 By__________/S/_______________ Manuel U. Araujo, Assistant Federal Public Defender Respectfully submitted, BARRY J. PORTMAN Federal Public Defender IV. CONCLUSION For the foregoing reasons, the defense respectfully requests that the Court dismiss the

18 indictment against Mr. Vergara-Perez.