United States District Court, D. Colorado
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 (10th 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 (10th 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 (10th 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 ...