United States v. Flores

          RECOMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS

          GORDON P. GALLAGHER, UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on a motion to dismiss filed by Defendant (ECF # 34), ^[1]the Government's response (ECF# 38), the Defendant's addendum (ECF #36), and the Defendant's reply (ECF #43). The case has been referred to this Magistrate Judge and falls under the Western Slope/Grand Junction Protocol which allows me to address dispositive motions on recommendation (ECF #14)^[2] as the parties have unanimously consented to my jurisdiction (ECF #10). The Court has reviewed the pending motion, response, addendum, reply and all attachments. The Court has also considered the entire case file, the applicable law, and is sufficiently advised in the premises. As there is no dispute over the factual scenario crucial to this Recommendation, and the parties have sufficiently alleged those facts in their briefing, no need exists for oral argument. This Magistrate Judge respectfully recommends that the motion be DENIED.

         Defendant is being prosecuted for illegal re-entry of a removed alien subsequent to a felony conviction in alleged violation of 8 U.S.C. §1326(a) and (b)(1) (ECF #1). Defendant, a citizen of Mexico, was made a lawful permanent resident (LPR) of the United States on October 2, 1995 (ECF #34-1). Defendant was convicted of vehicular eluding, a class five felony under Colorado law, by way of a guilty plea, in Colorado State Court, to wit, Montrose County District Court on June 22, 2009 (ECF #34-2). Removal proceedings were instituted against the Defendant. Id. Defendant was afforded notice of the inception of removal proceedings. Id. The notice indicates that Defendant was convicted of “a crime of violence” . . . “for which the terms of imprisonment ordered [were] at least one year” (ECF #34-1). Defendant refused to sign the notice. Id. A warrant of removal/deportation was issued on March 29, 2012 (ECF #34-3). Defendant was alleged, under the Immigration and Nationality Act, to have been convicted of an “aggravated felony” and “a crime of violence” (ECF #34-1). Defendant was ordered removed from the United States (removal order (RO)) (ECF #34-3). The removal order indicates that Defendant's right to appeal was “reserved” and that any appeal was due by April 27, 2012. Id. Defendant was personally served with the removal order. Id. Defendant was removed from the United States on April 4, 2012 (ECF #1, p. 1). Defendant appealed his removal order on June 22, 2018 (post Dimaya, see infra) (ECF #34-4). Defendant's appeal was dismissed as untimely (ECF #36-1).

         In a written motion, the Defense now moves to dismiss in this matter on the basis that the removal order “is invalid because it rests on a finding that [Defendant's] vehicular eluding conviction, in violation of Colorado Revised Statute[] § 18-9-116.5, is an aggravated felony under the Immigration and Nationality Act (“INA”).” Defendant's motion to dismiss (ECF #34, p. 1). Defendant argues that the conviction was not for an aggravated felony, see Sessions v. Dimaya, 138 S.Ct. 1204 (2018) (finding the residual clause of the INA, 18 U.S.C. § 16(b), unconstitutional as void for vagueness). Defendant further argues in his motion to dismiss that: he was not removeable; that the removal order cannot be used against him; that he exhausted his administrative remedies; and that he was deprived of any meaningful judicial review. Defendant's motion (ECF #34, pp. 1-2). The Government responded opposing Defendant's motion. Government's response (ECF #38).

         Defendant seeks to collaterally attack his removal order under 8 U.S.C. § 1326(d). 1326(d) precludes an alien challenging the validity of a deportation order in the context of a criminal proceeding unless:

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d). Defendant argues that he has met all three prongs of § 1326(d).

         Defendant leads off with the fundamental unfairness prong, arguing that there is a “reasonable likelihood that, but for the errors complained of [during his removal proceeding], he would not have been deported.” U.S. v. Sandoval, 390 F.3d 1294, 1299 (10^th Cir. 2004) (internal citation and quotation marks removed). Defendant argues the fundamental unfairness to be a determination that the crime for which he was convicted, vehicular eluding, met the definition for being a crime of violence under the now unconstitutional residual clause of the INA, 18 U.S.C. § 16(b). Defendant further argues, following the chain of cases from Johnson to Welch, that the change to § 16(b) should be applied retroactively. See Johnson v. United States, 135 S.Ct. 2551 (2015) (holding the identical residual clause of the ACCA unconstitutional; and see Welch v. United States, 136 S.Ct. 1257 (2016) (finding that Johnson announced a substantive change to the criminal law to be applied retroactively). As the Tenth Circuit has held that vehicular eluding is only a qualifying crime of violence under the residual clause, prior to voiding the two residual clauses, see Sykes v. United States, 564 U.S. 1 (2011), Defendant argues that “aggravated felony determinations under § 16(b) are [now] constitutionally prohibited.” Defendant's motion (ECF #34, p. 8). Thus, Defendant argues that his removal order was fundamentally unfair as it was based on finding that he had been convicted of an aggravated felony in a now constitutionally prohibited manner.

         In terms of exhaustion pursuant to 8 U.S.C. § 1326(d)(1), Defendant argues that he met this prong by filing a pro se appeal on June 22, 2018. Id. at p. 8. Defendant's initial argument on this issue is:

A Defendant “who knowingly waives the right to appeal an immigration judge's order of deportation fails to exhaust administrative remedies under § 1326(d)(1)” United States v. Chavez-Alonso, 431 F.3d 726, 728 (10^th Cir. 2005). It necessarily follows that a defendant who does appeal their order of deportation has exhausted their administrative remedies. No other administrative remedies are available to Mr. Flores, so filing of this pro se appeal satisfies the exhaustion standard under § 1326(d).”

         Defendant's motion (ECF #34, p. 8) (sic). Defendant then filed an addendum (ECF #36) to his motion continuing to assert that exhaustion is established. Defendant engages in some discussion of the Tenth Circuit's invalidation of the departure bar. See Contreras-Bocanegra v. Holder, 678 F.3d 811 (10^th Cir. 2012) (the en banc Court in Contreras-Bocanegra invalidated the post-departure bar upon application step-one of the Chevron analysis, see Chevron U.S.A. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), finding that “the statutory text is plain insofar as it guarantees to each alien the right to file one motion to reopen.” Contreras-Bocanegra, 678 F.3d. at 817 (internal citation and quotation marks removed) (emphasis original) (opinion filed January 30, 2012)).

         Defendant goes on to argue that, despite the exhaustion discussed supra, he had no meaningful opportunity for judicial review as the Tenth Circuit previously and squarely found vehicular eluding to be a crime of violence under the residual clause. See Skykes, 564 U.S. at 16; see also 8 U.S.C. § 1252 (a)(2)(C) (“no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.”). Defendant distinguishes U.S. v. Rivera-Nevarez (in which the conviction was affirmed) on the basis that, unlike vehicular eluding, the Fifth Circuit had not squarely determined the crime at issue in Rivera-Nevarez ...