Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States At torney District of Arizona TIMOTHY F. ANDREWS Assistant U.S. Att orney 780 E. 39th Place Yuma AZ 85365 Arizona State Bar No. 021658 Telephone (928) 344-9550 Email: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America,

10 Plaintiff-Res ponden t, 11 v. 12 Alvaro Reyes-Ramirez, 13 Defend ant-Mo vant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CR 03-0734-PHX-ROS CV-04-2037-PHX-ROS(LOA) GOVERNMENT'S SUPPLEMENTAL RESPONSE TO MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

The United S tates of Am erica, by an d through undersign ed couns el, hereby s ubmits this supplemental response to Defendant Alvaro Reyes-Ramirez's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth in the attached Memorandum of Points and Authorities, the United States contends that Defendant's deportation order, dated March 13, 1995 is valid and that his motion should be denied. Respectfully submitted this 31st day of August 2005.

PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Francisco Andrews TIMOTHY FRANCISCO ANDREWS Assistant United States Attorney

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MEMORANDUM O F POINTS AND AUTHORITIES I. Issue Presented Alvaro Reyes-Ramirez, Defendant, is currently confined in the Federal Correctional Institution at Milan, Michigan. On September 27, 2002 he filed a pro se motion p ursuant to 28 U.S.C . § 2255. The Go vernme nt has responded to that motion. On January 24, 2005, Defendant filed a reply to the Gov ernmen t's response and subse quently filed an ame nded rep ly on March 10, 2005. Defendant now alleges that, because he was not advised of his right to seek relief under Section 212(c) of the Immigration and Nationality Act, his deportation hearing violated his due process rights and rendered his deportation invalid.

II.

Procedural History On May 27, 2003, Defendant was arrested at the San Luis Port of Entry in San Luis,

Arizona and charg ed with A ttempted Reentry After Deportation, in violation of 8 U.S.C. §1326(a), enhanced by §1326(b)(2). On July 8, 2003, Defendant and the Government executed a written plea agreem ent, where Defendant waived his right to indictment and pled guilty to the foregoing charge by way of information. The plea agreement afforded the defendant a threelevel downward adjustment to his base offense level for Acceptance of Responsibility, under USSG §3E1.1 and up to a four-level downward departure based upon Savings to the Government, under USSG §5K2.0. Because the defendant's criminal history included a conviction for a drug trafficking offense that qualified him for a sixteen-level sentencing enh ancement, the p re-sentence report allocated the defendant an ad justed offense level of 24. (PS R at ¶ 14.) 1 The pre-sentence report also calculated the defendant's criminal history at a Category IV (PSR at ¶ 31). On September 29, 2003, in accordance with the terms of the plea agree ment, the Court sub tracted three le vels for Acceptance of Respo nsibility and fo ur levels for S avings to the Government, awarding the

The abbreviation "PSR" refers to the presentence report and will be followed by the pertinent paragraph number.

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defendant a final offense of level 17. The Co urt then sen tenced the d efendant to a 37- mo nth term of imprisonm ent, at the low end of h is guideline range. On September 27, 2004 Defendant filed a pro se motion, and the Court ordered the Government to file a response on October 14, 2004. On December 7, the Government filed a response, but some of the facts it used in its response came from an incorrect A-file. The Govern ment moved the Court for an order allowing it to file an amended response using the correct A-file. Th e Court gr anted the m otion, and the Gov ernmen t filed its response on Janu ary 5, 2005. O n January 24, 2005 , Defend ant filed a reply to the Government's response and subseque ntly filed an am ended rep ly on M arch 10, 2 005. De fendant raised, among other things, the issue of whether his deportation order, issued on March 13, 1995, was valid. The Court ordered the Government to file a supplemental response addressing this issue and further ordered the Gov ernmen t to provide th e Court w ith a transcript o f Defendant's deportation hearing. The Governmen t, despite repeated requests made through the agent assigned to the case, has been unable to obtain a recording or transcript of Defendant's deportation hearing on March 13, 1995 . The case agent, w ho has ha d conside rable difficulty locating the hearing tapes, has advised the Government that tapes, which may or may not contain Defendant's deportation hearing, have been retrieved from immigration archives and mailed to the case agent. As of 9:00 a.m. on August 31, 2005, however, the agent has not received the tapes. The Government now files this supplem ental response.

III.

Law A nd An alysis Defend ant conten ds that he w as not adv ised of his eligibility for a waiver under INA §

212(c) at his deportation hearing on March 13, 1995 and that the resulting deportation violated his due process rights. However, having failed to show this Court that his deportation was fundamentally un fair, Defendant is barred from challenging it on a collateral attack. A defendant convicted under 8 U.S.C. § 1326 for illegally reentering the United States after having be en depor ted has a F ifth Ame ndmen t right to collaterally attack the removal or 3

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deportation order underlying his or her conviction. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047-4 8 (9 th Cir. 2003), citing United States v. Mendoza-Lopez, 481 U.S. 828, 837-38. A defendant's right to collaterally attack such an order, how ever, is limited . See 8 U.S.C. § 1326(d). An alien convicted of illegal reentry may not collaterally attack the deportation or removal order that formed the basis of the conviction unless the alien demonstrates the following: (1) the alien exhausted any administrative remedies that may ha ve been a vailable to seek relief against the order; (2) the deportation proceedings at which the order was issued imprope rly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was funda mentally unfair. 8 U .S.C. § 1326 (d). A. Exhaustion and Judicial Review

In cases where a defendant has waived the righ t to appeal a deportation or rem oval order, the exhaustion requirement of 8 U.S.C. § 1326(d) need not be satisfied if the waiver was obtained in violation of due process. Ubaldo-Figueroa, 364 F.3d at 104 8. A waiver that is not "considered and intelligent" violates due process. Id. In cases where an alien eligible for relief under Section 212(c) of th e Imm igration and Nationality Act (INA ) waives th e right to appeal a deportation order, that waiver violates due process if the alien is not apprised of his or her eligibility for relief under INA § 212(c). See Un ited States v. O rtega-Asc anio, 376 F.3d 879, 886-87 (9 th Cir. 2004); see also Ubaldo-Figueroa, 364 F.3d at 1049-50. Failure to advise an alien of eligibility for such relief also deprives the alien of the opportunity to seek meaningful judicial review. See United States v. Zarate-Martinez, 133 F.3d 11 94, 1197 (9 th Cir.1997). The burden of proving that a waiver comports with d ue process falls on the G overnment. United States v. Lopez-Vasquez, 1 F.3d 751, 7 54 (9 th Cir. 1993). INA § 212(c), which was repealed in 1996 by the Illegal Immigration Reform and Immigrant Respon sibility Act (IIRIRA), allowed aliens ordered removed from the United States to apply for d iscretionary re lief through th e Attorney General. To be eligible for relief under INA § 212(c), an alien had to be lawfully domiciled in the United States for seven consecutive years, not having been convicted of an aggravated felony for which the term of imprisonment 4

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was five years or more. The repeal of INA § 212(c) does not apply to aliens ordered removed on the basis of convictions pre-dating IIRIRA . INS v. St. Cyr, 533 U.S. 29 5 (2001). Defend ant, apparently lawfully domiciled in the United States for a period exceeding seven consecutive years, was ordered deported from the United States on March 13, 1995, after having been convicted for Possessing a Controlled Substance for Sale. PSR ¶ 28. Because the conviction that forme d the basis o f his removal occurred prior to IIRIRA's enactment, he is not categorically barred from relief under INA § 212(c) . Because the Government has not been able to listen to the recordin g of Defe ndant's rem oval hearin g, the Go vernme nt presently has no proof that Defendant was advised of his eligibility for discretionary relief under INA § 212(c). Based on the fore going, the Gov ernment m ust concede, for purp oses of this

supplemental response alone, that Defendant's waiver was not considered and intelligent and that he was denied due process at his March 13, 1995 hearing. Therefore, until the hearing tapes are received and indicate otherwise, it appears that Defendant is exempt from having to the exhaust his administrative remedies. Furtherm ore, it appears that the defendant was deprived of the opportunity to seek meaningful judicial review. B. Fundamen tal Unfairness

A removal order underlying an alien's illega l reentry pros ecution is fun damen tally unfair if: (1) the alien's due process rights were violated by defects in his or her underlying deportation proceeding, and (2) the alien suffered prejud ice as a result of the defects. Ubaldo-Figueroa, 364 F.3d at 1048. To show prejudice, an alien need not prove that h e or she would have been granted relief, but only that he or she had "a plausible ground for relief from deportation." Id. at 1050. Decidin g whether a particular alien has a plausible ground for relief involves a balancing of favorab le factors or equities against unfavorab le equities. See Rashtabadi v. INS, 23 F.3d 1562, 1570 (9 th Cir. 1994 ). Exam ples of favo rable factors would be family ties to the United States, evidence of hardship that would result from deportation, military service, employ ment, evidence of good character, and, in the case of one convicted of a crime, proof of rehabilitation. See Lovell v. INS, 52 F.3d 458, 461 (2 nd Cir. 1995 ). Exam ples of unfa vorable 5

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factors would include the nature and circumstances of the ground on which the alien is being deported, the nature and seriousness of the alien's criminal record, the presence of additional immigration law violations, and other eviden ce of bad character. Id. As previously discussed, because th e Gove rnment p resently can not sustain its burden of showing that Defendant's waiver comported with due process, it must concede that the deportation proceeding on March 13, 1995 violated his due process rights. However, Defendant clearly has no plausible ground for relief from his deportation order dated March 13, 1995. An alien convicted of a drug trafficking offense or whose criminal record otherwise shows a pattern of serious criminal activity must show "outstanding equities" in order to be eligible for relief under INA § 212 (c). Ayala-Chavez v. U.S. Immigration and Naturalization Service, 944 F.2d 638, 641 (9 th Cir. 1991). Defendant was ordered deported because of a conviction he sustained in 1994 for possessing heroin for sale, a drug trafficking offense. PSR ¶ 28. The only reason why

Defendant was not c ompletely barred from eligibility for relief under INA § 212(c) is that he received a sentence that was less than five years. Id. Also, Defendant has a litany of

convictions, mostly traffic-related, dating as far back as 1982, that preceded his first drug conviction. PSR ¶¶ 19-27. Furthermore , Defend ant returned to the Unite d States after h is deportation and committed yet another drug trafficking offense in 1998, after the enactment of IIRIRA. PSR ¶ 29. Lastly, Defendant has several arrests for immigration offenses. PSR ¶¶ 3238. Other than his lengthy presence in the United States, a significant portion of which he spent building himself a c riminal reco rd, and the fact that he fath ered a child here in the United States, Defendant has n o equities that work in his favo r. A finding that D efendant h as no plau sible ground for relief from his d eportation w ould be consistent w ith 9 th Circuit cases that have add ressed the issue of §212 (c) relief. In AyalaChavez, 944 F.2d at 640 , the Court found that a decision by the Board o f Immig ration Ap peals denying an application for a § 212(c) waiver was appropriate where the alien seeking relief was convicted for possessing cocaine and had a prior r ecord con sisting of num erous traffic 6

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violations. The Court found the denial appropriate notwithstanding the fact that the alien had been lawfully present in the United States for 18 years, had a U.S. Citizen daughter to whom he paid child support, and had been steadily emp loyed as a farm w orker. Id. Furthermore, the 9 th Circuit generally requires some showing beyond Defendant's bare assertion that he was not advised of his right to seek the waive r. See e.g. Ubaldo-Figueroa, 364 F.3d at 105 0-51 (Court heard testimony and arguments regarding eligibility for relief under § 212(c)); see also United States v. Corrales-Beltran, 192 F.3d 1311, 1318 (1999) (Defendant, presenting no evidence other than the fact that more than fifty percent of § 212(c) waivers are granted, did not meet the plausibility standard).

IV.

Conclusion To succeed on a collateral attack challenging the validity of a removal order in a

conviction for illegal reentry, there must be a showing that the deportation hearing that served as a basis for the conviction deprived the alien of due process and was fundam entally unfair. While it is po ssible that the defendant was not properly advised of his eligibility for a waiver under IN A § 212 (c), resulting in a due pro cess violation , it is implausib le that he w ould have been granted relief had he been so advised. His extensive and serious criminal record forecloses him from showing a plausible ground for relief, given the outstanding equities he would have to present to merit the waiver. Because Defendant's deportation was not fu ndame ntally unfair to him, the Government requests that the motion of Defendant Alvaro Reyes-Ramirez to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, be denied and this action dismissed. Respectfully submitted this 31st day of August 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/ Timothy Francisco Andrews TIMOTHY FRANCISCO ANDREWS Assistant United States Attorney 7

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CERTIFICATE OF SERVICE I hereby ce rtify that on A ugust 31, 2 005, I m ailed the attached document to the following, who are not registered participants of the CM/ECF filing system: Alvaro Reyes-Ramirez Prisoner No. 61 803-208 FCI Milan MI P.O. Box 1000 Arkona Road Milan, Michigan 48160 s/ Timothy Francisco Andrews TIMOTHY FRANCISCO ANDREWS Assistant United States Attorney

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