BARRY J. PORTMAN

Federal Public Defender

STEVEN G. KALAR

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA 94102

Telephone: (415) 436-7700

Counsel for Defendant XXXX

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

TO: UNITED STATES ATTORNEY, PLAINTIFF; AND KEVIN V. RYAN, UNITED STATES ATTORNEY, NORTHERN DISTRICT OF CALIFORNIA; AND ROBERT D. REES, ASSISTANT UNITED STATES ATTORNEY

PLEASE TAKE NOTE that before the Honorable Judge William H. Alsup, at a date and time to be determined by the Court, counsel for Angel XXXX will move the Court to dismiss the indictment.

This motion is based on the attached memorandum of points and authorities, the Constitution of the United States of America, all applicable statutory and case law, and such argument as the Court will entertain at the motions hearing.

Background

Mr. XXXX is charged in a one-count indictment. See Exhibit A, Indictment of Oct. 28, 2004. In that indictment, the grand jury alleges that on November 7, 2002 the defendant was "denied admission, excluded, deported and removed from the United States to Mexico." Id.

That warrant of deportation was apparently based on a decision to reinstate a prior deportation order dated May 17, 2001. See Exhibit B, Notice of Intent/Decision to Reinstate Prior Order of May 17, 2001. That order was entered "[i]n accordance with Section 241(a)(5) of the Immigration and Nationality Act and 8 CFR 241.8." Id.

Discussion

I. The May 17, 2001 Reinstatement of Deportation Was Facially Invalid

Close analysis of the reinstatement of deportation relied upon by the government reveals that it was facially invalid, and cannot support the present illegal reentry prosecution. The indictment should accordingly be dismissed.

A. The Ninth Circuit Has Recently Held That the Statute and Regulation Used in the 2001 Reinstatement of Deportation Conflicts With the Immigration and Nationality Act

In May of 2001, Mr. XXXX was subjected to reinstatement of removal under INA § 241(a)(5) ⁽¹⁾ and the related implementing regulations at 8 CFR § 241.8. This May 17 reinstatement order was facially invalid, because it violated requirements in the Immigration and Nationality Act ("INA") that such proceedings be held before an Immigration Judge. See Morales-Izquierdo v. Ashcroft, __ F.3d __, 2004 WL 2609957, *1 (9th Cir. Nov. 18, 2004) ("We conclude that the reinstatement procedures violate the INA and grant the petition for review.")

In Moralez-Izquierdo, the Ninth Circuit considered the precise INA statute and CFR regulations involved in the defendant's reinstatement order. In Morales-Izquierdo, as in the present case, the defendant was served with a notice of intent to reinstate a prior deportation order in accordance with INA § 241(a)(5). Id. at *1. Section 241(a)(5) of the Immigration and Nationalization Act permits the reinstatement of a prior deportation order without being subject to being reopened or reviewed. Id., quoting 8 USC § 1231(a)(5).

The implementing regulation for Section 241(a)(5) is 8 CFR § 241.8. Id. at *1. As in Moralez-Izquierdo, the May 17 XXXX reinstatement of deportation order relied on the procedures articulated in 8 CFR 241.8. See Exhibit B, Reinstatement Order.

Section 241.8 of the Code of Federal Regulations permits a reinstatement of deportation without referral to an immigration judge:

§ 241.8 Reinstatement of removal orders.

(a) Applicability. An alien who illegally reenters the United States after having been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal shall be removed from the United States by reinstating the prior order. The alien has no right to a hearing before an immigration judge in such circumstances. In establishing whether an alien is subject to this section, the immigration officer shall determine the following:

(1) Whether the alien has been subject to a prior order of removal. The immigration officer must obtain the prior order of exclusion, deportation, or removal relating to the alien.

(2) The identity of the alien, i.e., whether the alien is in fact an alien who was previously removed, or who departed voluntarily while under an order of exclusion, deportation, or removal. In disputed cases, verification of identity shall be accomplished by a comparison of fingerprints between those of the previously excluded, deported, or removed alien contained in Service records and those of the subject alien. In the absence of fingerprints in a disputed case the alien shall not be removed pursuant to this paragraph.

(3) Whether the alien unlawfully reentered the United States. In making this determination, the officer shall consider all relevant evidence, including statements made by the alien and any evidence in the alien's possession. The immigration officer shall attempt to verify an alien's claim, if any, that he or she was lawfully admitted, which shall include a check of Service data systems available to the officer.

8 CFR § 241.8 (West 2004) (emphases added).

While these INA and CFR sections are designed to compliment and interrelate with one another, they are in glaring conflict with another, trumping section of the INA; Section 240(a)(3), which requires review by an Immigration Judge.

The Ninth Circuit in Morales-Izquierdo examined this conflicting provision of the INA, which requires that a proceeding under the section "shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States." Id. at *3, quoting INA § 240(a)(3). The "plain language" of that provision "unambigously indicates that an immigration judge must decide the 'inadmissibility' or 'deportability' of an alien." Id. ⁽²⁾ Therefore, "the plain language of the statute would seem to settle the question." Id. As the Ninth Circuit explained:

[I]t is clear from the structure of the legislation that Congress was well aware of the possibility of establishing expedited removal procedures. However, it chose not to alter the generally applicable rule that removal hearings must be conducted before immigration judges. Id. at *4. Given this limitation, 8 CFR § 241.8 - the regulation promulgated to give effect to INA § 241(a)(5) - "is in conflict with § 240(a) of the Immigration and Nationality Act." Id. at *5.

B. Because the May 17 Reinstatement Did Not Comport with Section 240(a) of the INA, the Reinstatement Order is Facially Invalid

Mr. XXXX was not given a removal hearing before an immigration judge in May of 2001. That "reinstatement proceeding" accordingly did not comport with the "plain language" of the INA. See INA § 240(a).

Specifically, the May 17 reinstatement order:

* expressly relied on Section 241(a)(5);

* expressly invoked the procedure of 8 CFR § 241.8, and;

* was - on its face - issued by a immigration director instead of an immigration judge.

The May 17 reinstatement order was accordingly in conflict with Section 240(a)(3) of the INA and is facially invalid.

Because the reinstatement order was facially invalid, Mr. XXXX's removal from the United States in 2002 was not a "deportation" for purposes of 8 U.S.C. § 1326, and the defendant has not "reentered after deportation" for purposes that statute. See, e.g., United States v. Fermin-Rodriguez, 5 F.Supp.2d 157, 163-64 (S.D.N.Y. 1998) ("[A]n alien has not been 'deported' for the purposes of §1326 if he was removed from the country by the INS without a facially valid deportation order").

The facts of Fermin provide a helpful starting point for this analysis because Mr. XXXX, like the defendant in Fermin, alleges that the order directing his deportation to Mexico was facially invalid.

In Fermin, the INS deported an alien even though his deportation order had been stayed by the Court of Appeals for the Fifth Circuit. See id. at 160. Mr. Fermin subsequently returned to the United States, was arrested for assault and intimidating a witness, and was convicted on those charges. Id. While he was in custody, the government indicted Mr. Fermin for illegal reentry. During the proceedings on the illegal reentry charge, Mr. Fermin argued that he could not be prosecuted for illegal reentry because he had never been "deported" within the meaning of section 1326; the order of deportation had been stayed at the time he was removed. Id. at 161.

The district court agreed with the defendant and dismissed the indictment, concluding that the INS had acted "without legal or institutional authorization" in removing him from the country. Id. Dismissal of the indictment was warranted because the government could not prove that Mr. Fermin had been "deported" for the purposes of § 1326. Id. Similarly, Mr. XXXX was subjected to a facially invalid reinstatement order, and was not therefore "deported" for the purposes of a Section 1326 prosecution.

The operative terms in Section 1326 are terms of art, and there can be no "departure" or "reentry" as a legal matter if the alien were merely forced out of the county pursuant to an invalid order. See United States v. Pacheco-Medina, 212 F.3d 1162, 1163 (9th Cir. 2000) (noting that words such as "reentry," as used in immigration context, have "evolved judicially" and are terms of art; holding that alien has not necessarily "reentered" simply because he is present on United States soil); Singh v. Walters, 87 F.3d 346, 350 (9th Cir. 1996) (noting that alien who is removed pursuant to invalid order, like the alien who is kidnaped out of the country, has not "departed" in the legal sense).

Mr. XXXX would not have left the United States but for the facially invalid reinstatement of deportation. He was not, therefore, deported under Section 1326. See Fermin-Rodriguez, 5 F.Supp.2d at 158. The indictment must accordingly be dismissed.

II. The Government's Reliance on Enhancement Facts that Increase the Statutory Maximum Sentence, Without Allegation of Those Facts in an Indictment or Proof Beyond a Reasonable Doubt in a Jury Trial, ViolatesApprendi

In Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), the Supreme Court held that an enhancement fact that increases a statutory maximum sentence must proved beyond a reasonable doubt in a jury trial. 120 S. Ct. at 2363-64.

The indictment filed against Mr. XXXX violates the dictates of Apprendi in two respects. First, it relies on an enhancement fact - the reinstatement of deportation/removal - that was not alleged in an indictment or proved to a jury beyond a reasonable doubt. Second, because the indictment fails to allege the existence of an aggravated felony, the statutory maximum for this offense is two years.

A. Because the Reinstatement of Deportation/Removal (Charged as a "Deportation") Was Not Alleged in an Indictment or Proved Beyond a Reasonable Doubt at Trial, it Cannot be Used as an Enhancement Fact in Mr. XXXX's Indictment

Section 1325 of Title 8 describes a misdemeanor offense for illegal entry. See 8 USC § 1325. For the first offense under Section 1325, the statutory maximum is six months. Id. at § 1325(a). To convert this misdemeanor into a felony, the government must prove additional enhancement facts - including the fact of a prior deportation. See 8 USC § 1326(a),(b); see also United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987) ("This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense . . . The result of those proceedings may subsequently be used to convert the misdemeanor of unlawful entry into the felony of unlawful entry after a deportation.") (internal quotations and citations omitted). Proof of the enhancement fact of a prior deportation increases the statutory maximum from six months (for a Section 1325 offense) to twenty years (for a Section 1326(b) offense). Compare 8 USC § 1325(a), with 8 USC § 1326(b).

In short, as explained by the Supreme Court in Mendoza-Lopez, the results of deportation proceedings can be used to increase the statutory maximum for the crime of illegal reentry from six months to twenty years. Phrased differently, the prior deportation proceedings (or in this case, the reinstatement of removal) produce an enhancement fact that dramatically increases the statutory maximum for a criminal charge. Because this enhancement fact increases the statutory maximum, it must be plead in the indictment and must be proved beyond a reasonable doubt in a jury trial.

In a directly analogous case, the Ninth Circuit has held that relying on an enhancement fact secured without these due process protections violates Apprendi and fatally undermines an enhanced sentence. See United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001).

In Tighe, the defendant pled guilty to several counts of bank robbery. Id. at 1190. The presentence report concluded that the defendant fell under the Armed Career Criminal Act, ("ACCA"), which created the danger of a fifteen year mandatory minimum sentence. Id. The defendant objected that the enhancement fact of a juvenile adjudication could not be used to trigger the greater ACCA sentence, because it was not proved beyond a reasonable doubt to a jury.  Id. That objection was overruled, and the district court sentenced the defendant to 235 months under the ACCA-related guideline. Id.

On appeal, the defendant argued that his sentence was unconstitutional "because it was increased beyond the statutory maximum 10 years by the district court's finding that he was adjudicated a juvenile delinquent for committing a violent felony when he was 14 years old." Id. at 1191. The defendant argued that Apprendi required that enhancement fact could only be used had it been charged in the indictment and found by a jury beyond a reasonable doubt. Id. The Ninth Circuit agreed. "[T]he district court violated Apprendi when, at sentencing, it increased Tighe's penalty beyond a prescribed statutory maximum based on an adjudication which denied Tighe the right to a jury trial." Id. at 1195.

The reasoning of Tighe is indistinguishable from the challenge now before this Court. In both cases, the government attempts to use the enhancement fact of a prior adjudication to enhance a statutory maximum sentence. In neither case was that enhancement fact alleged in an indictment or proved beyond a reasonable doubt in a jury trial. Therefore, in the present case - as in Tighe - the defendant cannot be exposed to the greater statutory maximum sentence based on an constitutionally-deficient enhancement fact.

At arraignment the government alleged that Mr. XXXX now faces a twenty-year statutory maximum sentence. This Court should now hold that as currently pled, the indictment does not allege an Apprendi-compliant enhancement fact that increases Mr. XXXX's statutory maximum sentence to twenty years. It should accordingly dismiss the indictment.

B. Because the Indictment Fails to Allege an Aggravated Felony, the Statutory Maximum Sentence Will Be Two Years

As described in the preceding section, the government has alleged at the defendant's arraignment that the statutory maximum term for the offense alleged in the indictment is twenty years. That is incorrect, and to the extent that this is the government's intention the indictment is fatally flawed. The indictment does not allege the enhancement fact of a prior aggravated felony, and the statutory maximum sentence permitted under Apprendi is therefore the two years contemplated in Section 1326(a). Because the government has expressed its intention to seek a twenty year sentence, and because the indictment does not contain the enhancement fact of a prior aggravated felony, Mr. XXXX seeks to dismiss the indictment.

The Ninth Circuit has admittedly considered and rejected this Apprendi argument. See United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000) ("UnderAlmendarez-Torres, the government was not required to include Pacheco- Zepeda's prior aggravated felony convictions in the indictment, submit them to a jury, or prove them beyond a reasonable doubt, and the district court properly considered such convictions in sentencing.")

The defense concedes that the Pacheco-Zepeda decision controls this Apprendichallenge to the use of an aggravated felony. The issue is raised here to preserve it for Supreme Court review.

Conclusion

For the foregoing reasons this Court should dismiss the indictment.

Dated: November 23, 2004

Respectfully submitted,

BARRY J. PORTMAN

Federal Public Defender

Northern District of California

STEVEN G. KALAR

Assistant Federal Public Defender

1. INA § 241(a)(5) is codified at 8 USC § 1231(a)(5).

2. INA § 240(a)(3) is codified at 8 USC § 1229a:

§ 1229a. Removal proceedings

(a) Proceeding

(1) In general

An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.

(2) Charges

An alien placed in proceedings under this section may be charged with any applicable ground of inadmissibility under section 1182(a) of this title or any applicable ground of deportability under section 1227(a) of this title.

(3) Exclusive procedures

Unless otherwise specified in this chapter, a proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be admitted to the United States or, if the alien has been so admitted, removed from the United States. Nothing in this section shall affect proceedings conducted pursuant to section 1228 of this title.

8 USC § 1229a (West 2004) (emphases added).