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United States v. Aulis-Morales

United States District Court, D. Minnesota

March 8, 2018

United States of America, Plaintiff,
v.
Raymundo Aulis Morales, also known as Raymundo Morales-Flores, Defendant.

          Diane Dodd, Esq., Assistant United States Attorney, counsel for Plaintiff.

          Bruce D. Nestor, Esq., De Leon & Nestor, LLC, counsel for Defendant.

          REPORT AND RECOMMENDATION

          BECKY R. THORSON, UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         Defendant Raymundo Aulis Morales is charged with illegal reentry of an alien in violation of 8 U.S.C. §§ 1326(a) and 1326(b). (Doc. No. 1.) This matter is before the Court on Defendant's Motions to Dismiss. (Doc. Nos. 17, 18). The Government filed a full response in opposition. (Doc. No. 25.) Defendant filed a reply brief on February 5, 2018. (Doc. No. 28.) On February 6, 2018, the Court held a hearing on the motions at which the parties were represented by counsel. As discussed below, the Court recommends that Defendant's motions be denied.

         BACKGROUND

         On July 25, 2005, Defendant was convicted of robbery in violation of Ohio state law, Ohio Revised Code § 2911.02(A)(2). After this conviction, and while Defendant was in state prison, the Government began the process of removing him from the United States. Rather than setting a traditional removal hearing before an Immigration Judge, the Government initiated an administrative removal process, authorized by 8 U.S.C. § 1228(b), which is reserved for individuals who lack lawful permanent resident status and who have been convicted of an “aggravated felony.”

         Pursuant to the administrative removal process, on August 8, 2005, the Government served Defendant with a Notice of Intent to Issue a Final Administrative Removal Order on a Form I-851 (“Notice of Intent”). The Notice of Intent stated that Defendant was amenable to administrative removal proceedings based on the allegations that (1) he was not a citizen of the United States; (2) he was a citizen of Mexico; (3) he entered the United States at an unknown place on an unknown date without inspection; (4) he was not lawfully admitted for permanent residence; and (5) he had been convicted on July 25, 2005 of “ROBBERY in violation of Section 2911.02(a)(2) of the Ohio Revised Code.” (Doc. No. 25, Attach. 1 at 2 of 3.) The Notice of Intent expressly informed Defendant that he was deportable because he was “convicted of an aggravated felony as defined in section 101(a)(43) of the Act, 8 U.S.C. 1101(a)(43).” (Id.) The Notice of Intent also expressly informed Defendant that pursuant to section 238(b) of the Immigration and Nationality Act, the Notice of Intent was being served upon Defendant “without a hearing before an immigration judge.” (Id.) Under the section titled “Your Rights and Responsibilities, ” among other things, the Notice of Intent stated the following: “You may seek judicial review of any final administrative order by filing a petition for review within 14 calendar days after the date such final administrative order is issued, or you may waive such appeal by stating, in writing, your desire not to appeal.” (Id.) He was also told he “may be represented (at no expense to the United States government) by counsel, authorized to practice in this proceeding” and if he “wish[ed] legal advice and cannot afford it, [he] may contact legal counsel from the list of available free legal services provided to you.” (Id.)

         The second page of the Notice of Intent contains two sections, one marked “I Wish to Contest and/or Request Withholding of Removal, ” and one marked “I Do Not Wish to Contest or Request Withholding of Removal.” (Id. at 3 of 3.) Beneath the section marked “I Do Not Wish to Contest or Request Withholding of Removal, ” the box next to the following paragraph was checked. This paragraph states:

         (Image Omitted)

         Immediately below that paragraph, the box was checked next to the sentence “I also waive the 14 day period of execution of the Final Removal Order.” (Id.) Defendant's signature is immediately below that sentence, along with the signature of a witness. (Id.) The second page of the Notice of Intent also reflects that an interpreter by the name of Joseph P. Laws “explained and/or served this Notice of Intent to the alien in the English and Spanish language.” (Id.)

         On August 18, 2005, a Final Administrative Removal Order Under Section 238(b) of the Immigration and Nationality Act issued. Based on the allegations set forth in the Notice of Intent and evidence contained in the administrative record, an Immigration and Naturalization Service Officer found that Defendant was “not a citizen or national of the United States” and was “not lawfully admitted for permanent residence”; had “a final conviction of an aggravated felony as defined in section 101(a)(43) of the Act, 8 U.S.C. 1101 (a)(43)” and was “ineligible for any relief from removal that the Attorney General may grant in an exercise of discretion”; and was “deportable as an alien convicted of an aggravated felony pursuant to section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii).” (Id. at 1 of 3.) On March 31, 2007, after completion of his state prison sentence, Defendant was removed from the United States.

         Defendant subsequently reentered the United States and was found in November 2017, in Minnesota. On December 12, 2017, Defendant was charged by Indictment for illegally reentering the United States in violation of 8 U.S.C. § 1326(a) and 8 U.S.C. § 1326(b)(2).

         On January 10, 2018, Defendant filed the motions to dismiss that are presently before the Court. (Doc. Nos. 17, 18.) Defendant seeks dismissal because the current charges for illegal reentry are based on the prior Final Administrative Order of Removal, which he contends is invalid on due process grounds and therefore may not serve as the basis for an element of a criminal charge under 8 U.S.C. § 1326(a) or (b)(2). In particular, Defendant contends that the Government did not obtain a knowing waiver of his right to contest or appeal the administrative removal order, and Defendant contends that his Ohio conviction for robbery in 2005 is not an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). Further, because Defendant contends that his Ohio conviction for robbery is not an aggravated felony, and an aggravated felony is required to sustain a conviction under 8 U.S.C. § 1326(b)(2), in a second motion Defendant requests that the charge under 8 U.S.C. § 1326(b)(2) be dismissed. The Government disagrees.

         DISCUSSION

         A defendant facing prosecution for a violation of 8 U.S.C. § 1326 may collaterally attack the underlying deportation proceedings and prevent the Government from using resulting orders of removal as a basis for conviction if three requirements are met. Two of the requirements come from the Supreme Court decision United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987), and require: “(1) an error in the deportation proceedings rendered the proceedings fundamentally unfair in violation of due process, and (2) the error functionally deprived the alien of the right to judicial review.” United States v. Aragon-Ruiz, 551 F.Supp.2d 904, 918 (D. Minn. 2008) (quoting United States v. Mendez-Morales, 384 F.3d 927, 929 (8th Cir. 2004)); see also United States v. Herrara-Perez, 265 F.Supp.2d 1097, 1099 (D.N.D. 2003) (citing Mendoza-Lopez, 481 U.S. 828, 840 (1987); United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995); United States v. Perez-Ponce, 62 F.3d 1120, 1122 (8th Cir. 1995); United States v. Encarnacion-Galvez, 964 F.2d 402, 406 (5th Cir. 1992)). To collaterally attack the underlying deportation proceedings, a defendant is also required to meet a third requirement - exhaustion of administrative remedies. 8 U.S.C. § 1326(d).[1] “These three requirements are conjunctive, and a defendant must establish all three prongs to prevail.” Aragon-Ruiz, 551 F.Supp.2d at 919.

         Defendant argues that his underlying removal order was based on the incorrect conclusion that robbery in violation of Ohio Revised Code § 2911.02(A)(2) is an “aggravated felony.” Assuming that error, he argues that immigration officials failed to advise him of his proper eligibility for relief, which then eliminated his right to seek judicial review and rendered his deportation process fundamentally unfair. He argues he was necessarily prejudiced by the errors because he was removed when he should not have been, and he was further prejudiced by not being afforded the opportunity to seek voluntary departure. Defendant also argues that he did not knowingly waive his right to administrative remedies or judicial review because the form Notice of Intent did not state that he ...


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