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United States v. Romero-Lopez

United States District Court, D. Oregon, Portland Division

December 16, 2019




         Defendant Esmeralda Romero-Lopez (Romero-Lopez) is charged with one count of illegally reentering the United States after having been removed, in violation of 8 U.S.C. § 1326. The indictment alleges that Romero-Lopez unlawfully reentered the United States without the consent of the appropriate authorities after having been removed as a noncitizen in 2004. Romero-Lopez now moves to dismiss, collaterally attacking the 2004 removal order. [ECF No. 16] She contends that she was denied due process because the Notice to Appear (NTA) she received for her 2004 removal hearing omitted a specific date and time for the hearing, thus depriving the Immigration Court (IC) of jurisdiction to hold a removal hearing. In the alternative, she asserts that her due process rights were violated because the original convictions that formed the bases for her deportation should not have been treated as aggravated felonies. Furthermore, she contends that she was not properly advised of her eligibility for relief from deportation. For the following reasons, I DENY the motion.

         Factual Background

         Romero-Lopez was admitted into the United States as a lawful permanent resident in 1993. On December 5, 2000, she was convicted of Receiving Stolen Property, in violation of Cal. Penal Code § 496(a) (Case No. 24909) [Def. Ex. 2 at 9, ECF No. 26]] She received a sentence of four months in prison and a thirty-six-month term of probation.[1] [Def. Reply at 6; ECF No. 26 and Def. Ex. 2 at 9, ECF No.26.] The order imposing probation stated that she was convicted of the crime of "Receiving Stolen Property, a felony." [Def. Ex. 2 at 9, ECF No. 26] (emphasis supplied). On December 30, 2002, she was convicted of False Personation, in violation of Cal. Penal Code § 529 [Def. Ex. 2 at 2, ECF No. 26], and sentenced to six months in jail and a term of probation. (Case No. 27525) [Def. Reply at 6.] On April 24, 2003, while still on probation, Romero-Lopez was convicted a second time for False Personation. (Case No. MF-35533) [Def. Reply at 2.] The Merced County Court sentenced Romero-Lopez to a prison term of sixteen months on the second False Personation conviction. In addition, the court revoked and then reinstated probation for her prior two convictions and sentenced her to an additional sixty days in Merced County Jail on the Receiving Stolen Property conviction, but no additional jail time for the first False Personation conviction. [Def. Reply at 7.] An Abstract of Judgment issued five days post-conviction by the Merced District Court states that "Defendant was convicted of the commission of the following felonies" (emphasis supplied) and lists all three of Romero-Lopez's convictions. [Def. Ex. 2 at 4, ECF No.26.] The Abstract lists the sentences imposed as sixteen months for each conviction.

         While Romero-Lopez was in custody, the California Department of Corrections sent a notice to U.S. Immigration that Romer-Lopez might be wanted by them for Illegal Entry. [Govt. Ex. 1 at 1, ECF No. 25.] On June 2, 2003, the Immigration and Naturalization Service (INS) issued Form 1-862, an NTA for removal proceedings for Romero-Lopez. [Govt. Ex. 1 at 7.] The form ordered Romero-Lopez to appear for a hearing to show why she should not be removed from the United States. However, the NTA did not specify the place, date, and time for that hearing. Rather, in the blanks for date and time, the form noted "a date to be set" and "a time to be set." [Govt. Ex. 1 at 7.]

         On June 12, 2003, the INS generated Form 1-213, a Record of Deportable/Inadmissible Alien. The form stated that on April 24, 2003, Romero-Lopez had been convicted of an Aggravated Felony, to wit: False Personation & Receiving Stolen Property. The form also referenced her sixteen-month sentence. [Govt. Ex. 1 at 3.] Romero-Lopez remained in state custody until December 22, 2003, when she was transferred to INS custody.

         On December 22, 2003, Romero-Lopez signed and dated a "Notification of Rights and Request for Resolution." [Govt. Ex. 1 at 11] That document, provided to Romero-Lopez in Spanish, informed her that: (1) she had a right to a hearing to decide if she could remain in the United States; (2) she might have the right to be released on bail before her hearing; (3) she had the option to return to her country of origin without a hearing; (4) she had the right to contact an attorney or legal representative; (5) she could be provided a list of no- or low-cost attorneys if she requested; and (6) she could use a phone to contact her country's consular office or legal representative. Romero-Lopez checked and initialized a box on the form indicating she requested a hearing to determine if she could remain in the United States. She did not check a box on the form that she considered it dangerous if she were to be returned to her country of origin.

         On January 6, 2004, INS conducted an internal file review of Romero-Lopez. The review determined that she was an aggravated felon for which detention was mandatory. [Govt. Ex. 1 at 18.] On January 12, 2004, Romero-Lopez appeared before an Immigration Judge (IJ) at her removal proceeding. She was not represented by an attorney. Following the hearing, she was ordered removed from the United States to Mexico because she had been convicted of a crime designated as an aggravated felony. [Govt. Ex. 1 at 21] At the hearing, Romero-Lopez waived her right to appeal and was removed from the United States. [Govt. Ex. 1 at 22.]

         Thereafter, Romero-Lopez reentered the United States. On January 18, 2018 she was found in the District of Oregon and this case followed. [ECF No 1.]


         "A defendant charged with illegal reentry pursuant to 8 U.S.C. § 1326 has the right to bring a collateral attack challenging the validity of h[er] underlying removal order, because that order serves as a predicate element of h[er] conviction." United States v. Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017).

         To sustain a collateral challenge under section 1326(d), a defendant must demonstrate that (1) she has exhausted all administrative remedies available to appeal the deportation order; (2) the underlying deportation proceedings at which the order was issued improperly deprived her of judicial review; and (3) the deportation order was fundamentally unfair. 8 U.S, C. § 1326 (d); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004), The defendant bears the burden of proving all the § 1326(d) elements. Ochoa, 861 F.3d at 1019. If a defendant was not convicted of an offense that made her removable under the SNA to begin with, she is excused from proving the first two requirements. Ochoa, 861 F.3d at 1015; United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). With respect to the third prong, "[a]n underlying removal order is fundamentally unfair if (1) a defendant's due process rights were violated by defects in her underlying [removal] proceeding, and (2) she suffered prejudice as a result of the defects." Ubaldo-Figueroa, 364 F.3d at 1048 (internal quotation marks and alterations omitted).

         The INA "provides that a noncitizen who has been convicted of an 'aggravated felon'" may be deported from this country." Moncrieffe v. Holder, 569 U.S. 184, 187 (2013). "The term 'aggravated felony' means-a theft offense (including receipt of stolen property)... for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101 (a)(43)(G) (2004).

         An IJ has jurisdiction over removal proceedings even though an NTA lacks a date and time for the removal proceeding. Karingithi v. Whitaker,913 F.3d 1158 (9th Cir. 2019). An NTA vests an IJ with jurisdiction regardless of whether there is a later-issued notice informing the noncitizen of the time and date of the hearing. Seegenerally Karingithi,913 F.3d 1158; In ren Bermudez-Cota,27 I. & N. Dec. 441, ...

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