United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
E. JONES, DISTRICT COURT JUDGE.
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
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. [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.
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.]
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
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.
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.]
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.]
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).
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).
"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).
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, ...