RECEIVED ________COPY .
I
JAN 3 1 guns
I °` ]_ Enrique Cortez-—Rub1o CLERK U S DISTR C ·
‘ I TGOUHT
â€Â°'°3°'1’*° ‘ onsrnncr os Amour
3 3250 North Plnal Parway Ave. _ BY
- ...._..,__,__________E_ DEPUTY
Florence. Az. 85232 » -
3 ‘
I Appellant I pro se I
4 I
I
5 IN TEE UNITED STATES DISTRICT COURT
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5 . ‘ FDRTHE DISTRICT 01* AHZHEA
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I I I .
7 UNITED STATES gp Agglcg, ) Case· N0. CR 03-131-PHX- C
I P1ai.nt:I.ff—Appe11ee,· I)
s ) -
Vs. ) HEHJRAIIIDUH OF LAW IN SUPPORT OF
9 ) HZITION IN REQUEST FOR SPECIAL IHJUNCTI
I Enrique C0rtez—Rub;I.o, ) I
I 10 Defendant- ellant, )
I
ll "
I 12 I During cm.=¤¤ee*sV prosecutionfof :I.llegalT`reentry·"into the United States
I ]_3 following deportation in violation of title 8 U.S.C. §1326(a) and enhanced by
14 (b)(2), he filed an "ADDEN`DUl°L~TD‘DEFENBANT:'S`MOTION T0 DISMISS SUPERSEDING F
Y I
15 INDICTMENT BASED ON COLLATERAL ATTACK T0 PRIOR DEPORTATION PROCEEDINGS} (DKT I'}
16 3.70, filed on Febuary sth, 2005). In which motion Cortez asserted, "motion to
17 establish a setting of information in this court's administrative record."
18 On May 16th, 2005, the District Court's Seinior Judgegranted the Addendum
19 Motion to Dismiss. However, eventhough the judge stated having acknowledged I
I I -.
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20 Cortez's arguments in connection to violations of Immigration regulations `
I 21 during Cortez's legalization process, as well as to arguments of Due process
I 22 violations occuring throughout prior deportation proceedings, the District `
` I 7
23 Copurt Judge never made ah actual determination to either of, the violations
I n I I
I 24 of immigration regulations, nor of, the Due process violation which Cortez
25 alleges that have occured throughout the prior underlying deportation `
26 proceedings. I
I 27 In addition to, having had pointed out,‘7zLn= specific detail, Cortez M A I
28 personally discussed the evidences to the claims of Due process violation with
I
2*1.::1+: ‘ ·n 0 LA S T OF · ,
I ss2e§ed¤¥$1SEA&°§E Q@eueerrI¤202 F·I9¤I ¤1/34/2¤<>6 Pagel ¤f4
I - 1 of n I ~
% A .
K
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C 1% Assistant United States District Attorney, Mr. Koehler, A.D.A., the response “"v
2 1motions continued to contradict Cortez's claims of Due process violations.
3% Wherefore, Cortez filed a notice of appeal in attempts of having a higher
T ,4% court, Ninth Circuit Court of Appeals, 1, review for claims of Due process
5% violations, 2, whether this court was correct in concluding that the appropriate ·
6% form of review was by Haheas Corpus, 3, violation of speddy trial and 4, for
7% prosecutorial misconduct.
% S Throughout prosecution proceedings of violation of 8 U.S.C. §1326, Cortez
9 was denied due process, such as denial to the right to be heard, denial of†rv
% 10% access to the courts, (ineffective assistance of counsel, denial to access the
11% inmate law library, and denial to court'transcripts), thus, constituting poor
% 12% judicial integrity. Such Due process violations would also be pointed out to the
13% Ninth Circuit Court of Appeals's attention. I
14% Cortez construed appellant brief, and added exhibits excerpts, ect. Unfor-%
% 15% tunately Cortez was transfered from Arizona Detention Correction Center, CCA,
16% and to Im igrantion Detention Center in Florence, Arizona. A former fellow"
% 17% inmate ofvCortez has just written a letter to Cortez informing that the
19% was no longer in CCA's custody. l _
% 20% On January 18th, 2006, Cortez was served with "NOTICE OF INTENT T0 ISSUE
21% A FINAL ADMINISTRATIVE REMOVAL 0RDER," At that time the Deportation officer,
22% served Cortez with notice of intent, also notified Cortez that he had 10 days
23% to file any argument on and to garner any evidence which he intended to present
% 24% before the Immigration Court on his behalf. Uhat is not clear is that the 1
25% officer adviced Cortez that the argument had.to be filed with the District Court
% f 26% for the District of Arizona whereas in the notice of intent it is clearly
_ 27% specified that the respondent must address his issues to the "Department." S
28% Which ever it may be, Cortez will address his issues "only to the Ninth ’ A
UH OF LAW IN S BT OF _ ·
2 *SQOi1·§j- 2 Fnled O1/31/2006 Page 2 of 4 _
—Z of 4 _ o
l
V
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l v l Circuit Court of Appeals, suffice it to say that Cortez's arguments consist of ·
2 Ninth Circuit precedents, Cortez attempts to have the Ninth Circuit reconsider
3 its own interpretation·of.statuteegwherefore,,thiasarggmentscwnuldibeebestesnited
4 for,Ninth"Circudt*adjudicationi"·_Ci r
5 Cortez has communicated with the Ninth Circuit's Court Clerk of pkesent
" 6 circumstances, (being sérved with notice of intenttand facing possible removal
7 while his appeal is still pending and not officially dismissed). Cortez has also
8 filed an "Emergency Moiton Under Circuit Rule 27$3(b), requesting "Stay pendding
9 appeal." However, this motion is now filed with this court in request for ""‘~t’
10 "Special Injunction, to afford Cortez a stay from“remova1~pendding appeal."
11 LAW AND
12p In contentiohtof»Dne¤Process~violations, Cortez brought various arguments
13 before the District Court's attention, however, the District Court Judge, while
lqahavingtstated its acknowledgment of such arguments, neglected to determine the I
15gmeyigS gf ghggg arguments, Although such~argumentscoonsisted#of“Bepartment
16*violat1ng Immigration regulations throughout legalization process Corteh¤$·c
]jycontends that such violations played·anlinflnentualirole to the underlying I
18 eportation and removal order. Thus, the Department's negligence constituted
19 ue Protéss·vi6lations, p
20 According to United States V. Mendoza—Lopez, 481 U.S. 828,837-38 (1987)
21 ("where a determination made in an administrative proceedings is to play a
22 ritical role in subsequent imposition of criminal sanction, there must be some
23`eaningful review of the administrative proceeding. This principle means at the
24 ery least that where the defects in an administrative foreclosure, judicial
25 eview of that proceeding, as an alternative means of obtaining a judicial
26 eview must be available before the administrative order may be used to establish
27 onmclusively an element of a criminal offense.
28 Because the Deportation and removal orders?were executedcin~violations of
MEMORANDUM OF LAW IN SUPPORT OF
·E|HCIAL Filed O1/31/2006 Page 3 of 4
‘ *’ { lllm igration regulations, the proceedings were procédurally flawed that it .
. 2§"effect1vely eliminate[d] the right to obtain judicial review." Therefore,
BECOPIIEZ must be allowed to submitt his arguments and pointout the prejudicial rFâ€Z M `
4pf6CtOfS relating to his arguments and pointout the prejudicial factors relating
5 to his proceedings in order to set his challenge of unlawful deportation.
6 If, the deportation proceedings did violate Cortez‘s Due process rights,
7{this Court*s~failurerto
9% Aliens are entitled to the full panoply of substantive and.procedura1C
_ lopsafeguards provided in a criminal proceeding. United States V. SolanorGodinez,
llilzo F.3d 957,960-61 (9th Cir. 1997). "
12p Cortez has a right to appeal, see Federal Rules of Appellate Procedures
13§(4)(b) and (c)(l). Wherefore, denial of“this¤motionemayTresult in Coftez's rw-Nw
l4;IEmDV81 while appeal is still pending and deprive Cortez from the right of l
15Iappeal. ` p
16 n GUNCIBSIDN ` p
17; The requested function from this court,'is that this court enter an '"W V"
13[immediate order for Stay from Removal. C
19% p . _ p ·—Y ‘ ‘ C
20 RESP ; 25th 4 »_ .,.»-1, _ . 4:..
21
a
g j ffnue Corte ¢ ·1¤ ‘
22§ 4 -·-*11aut-De,v··;·t I pro se p
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24 _ —
25 p d `
26 .
27I p `
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HEHDRANDUH OF LAW IN SUPPURE OF
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