394 F.Supp.3d 1313
E.D. Wash.2019Background
- Defendant Homar Cruz-Aguilar was served a Notice to Appear (NTA) on Oct. 22, 2010 that did not list the date/time of the initial removal hearing; a Notice of Hearing with date/time was mailed Oct. 29, 2010 but was not received by defendant and arrived five days before the Nov. 3, 2010 hearing.
- At the Nov. 3, 2010 group removal hearing defendant, proceeding pro se with an interpreter, admitted removability; the IJ denied voluntary departure and ordered removal to Mexico; defendant waived appeal and was removed.
- The 2010 removal order was later reinstated in 2011 and 2013. In 2019 defendant was indicted for unlawful reentry under 8 U.S.C. § 1326, the charge relying on the 2010 removal order as a predicate.
- Defendant moved to dismiss the indictment arguing (1) the 2010 removal order is void for lack of immigration-court jurisdiction because the NTA filed with the court omitted hearing date/time and defendant did not receive timely notice, and (2) the removal proceedings denied due process because the IJ failed to give a genuine opportunity to seek voluntary departure.
- The court held an evidentiary review of filings and affidavits, found the Notice of Hearing was not received and the prompt-hearing waiver was not a valid, informed waiver in Spanish, and concluded both jurisdictional and due-process defects existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether immigration-court jurisdiction vested when the NTA filed with the court omitted the date/time and subsequent hearing notice was not timely received | N/A in opinion (Government contended jurisdiction existed via later notice) | Jurisdiction did not vest because the NTA filed omitted date/time and defendant did not receive timely notice of date/time | Court held jurisdiction did not vest; the 2010 removal order is void for lack of subject-matter jurisdiction |
| Whether defendant validly waived 10-day notice by signing a prompt-hearing request | Government asserted waiver was valid and defendant requested prompt hearing | Waiver invalid because defendant was not advised in Spanish of rights waived and the certificate of service was misleading | Court held the prompt-hearing waiver was invalid and unenforceable |
| Whether IJ violated due process by denying a meaningful opportunity to pursue voluntary departure | Government argued IJ considered request and denied as discretionary based on criminal/immigration history | IJ failed to scrupulously probe facts, used yes/no questioning, and issued conclusory discretionary denial without weighing equities | Court held IJ violated due process by not giving a genuine opportunity and failing to weigh favorable/unfavorable factors |
| Whether defendant may collaterally attack the removal order under 8 U.S.C. § 1326(d) | Government argued defendant waived appeal and cannot meet §1326(d) requirements | Defendant argued waiver was invalid and the proceedings were fundamentally unfair, satisfying §1326(d)(1)-(3) | Court held defendant satisfied §1326(d) — waiver invalid, deprived of judicial review opportunity, and removal order was fundamentally unfair; indictment dismissed |
Key Cases Cited
- Gonzalez-Caraveo v. Sessions, 882 F.3d 885 (9th Cir.) (jurisdiction vests when NTA is filed with immigration court)
- Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir.) (regulatory NTA definition does not require date/time and later hearing notices can confer jurisdiction where timely provided)
- Ubaldo-Figueroa v. United States, 364 F.3d 1042 (9th Cir.) (collateral attack standards on removal orders for § 1326 defendants)
- Melendez-Castro v. Mukasey, 671 F.3d 950 (9th Cir.) (IJ must meaningfully advise and give genuine opportunity to pursue voluntary departure)
- Campos-Granillo v. INS, 12 F.3d 849 (9th Cir.) (IJ must weigh favorable and unfavorable factors and provide reasoned analysis)
- Reyes-Bonilla v. United States, 671 F.3d 1036 (9th Cir.) (validity of appellate-waiver standards; government bears clear-and-convincing proof burden)
- Rojas-Pedroza v. Holder, 716 F.3d 1253 (9th Cir.) (factors relevant to voluntary departure considerations)