United States District Court, D. Colorado
OPINION AND ORDER OVERRULING OBJECTIONS AND DENYING
MOTION TO DISMISS
MARCIA
S. KRIEGER, SENIOR JUDGE
THIS
MATTER comes before the Court pursuant to Mr.
Flores' Objections (# 56) to the
Magistrate Judge's January 26, 2019 Recommendation
(# 49) that Mr. Flores' Motion to
Dismiss the Indictment (# 34, 36) be denied.
The Government did not file any response to those Objections.
Mr.
Flores, who is a citizen of Mexico, obtained Lawful Permanent
Resident status in the United States in or about 1995. In
2009, he was convicted of vehicular eluding, a felony, in
violation of C.R.S. § 18-9-116.5. Thereafter,
immigration authorities began deportation proceedings against
him contending that his conviction constituted an aggravated
felony under 8 U.S.C. § 1227(a)(2)(iii) and a crime of
violence under 8 U.S.C. § 1101(a)(43)(F). On March 28,
2012, an Immigration Judge ordered Mr. Flores deported. That
Order gave him until April 27, 2012 to file an appeal from
that ruling. Mr. Flores did not appeal by that deadline.
Mr.
Flores was apprehended in the United States in February 2018
and charged in a March 27, 2018 Indictment (#
1) with unlawful reentry of a previously-deported
alien in violation of 8 U.S.C. § 1326(a), (b)(1). To lay
the groundwork for the instant motion, Mr. Flores filed an
appeal of his deportation order with the Immigration Court,
alleging that his deportation was invalid because of the U.S.
Supreme Court's decision in Sessions v. Dimaya,
138 S.Ct. 1204 (2018). The Immigration Court denied that
appeal as untimely. Nevertheless, Mr. Flores then filed the
instant motions to dismiss (# 34, 36) in
this case, arguing that because (under Dimaya) his
vehicular eluding conviction could not be considered an
“aggravated felony, ” his 2012 deportation was
therefore invalid, and that because his deportation was
invalid, he could not properly be charged here with re-entry
following a deportation.
The
Court referred Mr. Flores' motion to the Magistrate Judge
for a Recommendation and on January 26, 2019, the Magistrate
Judge recommended (# 49) that Mr.
Flores' motion be denied. Mr. Flores filed timely
Objections (# 56). Pursuant to 28 U.S.C.
§ 636(b), the Court reviews the Recommendation de
novo.
8
U.S.C. § 1227(a)(2)(iii) provides that “any alien
who is convicted of an aggravated felony . . . is
deportable.” As pertinent here, the term
“aggravated felony” is defined by 8 U.S.C. §
1101(a)(43)(F), which provides that an aggravated felony is
“a crime of violence” as that phrase is defined
in 18 U.S.C. § 16. That statute, in turn, defines
“crime of violence” in two ways: crimes that have
“as an element the use, attempted use, or threatened
use of physical force against the person or property of
another” (the “elements clause”) and any
felony that “that, by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing
the offense” (the “residual clause”). In
Dimaya, the Supreme Court held that the residual
clause, as incorporated into the Immigration Act, was
unconstitutionally vague. 138 S.Ct. at 1210. With the
residual clause stricken, offenses that constitute
“aggravated felonies” sufficient to support
deportation are now only those that satisfy the elements
clause - those crimes that have an element involving the use
or threatened use of physical force. There is no material
dispute that vehicular eluding, under Colorado law, does not
have an element requiring the use of physical force, and
thus, a conviction for vehicular eluding is not an aggravated
felony that would support deportation of a lawful permanent
resident.
But
observing that if Mr. Flores were convicted now for
vehicular eluding, he would not be deportable due to an
aggravated felony does not resolve the question presented
here. As of the time of his arrest, Mr. Flores was subject to
a facially-lawful deportation order, thereby supporting the
current charges against him. 8 U.S.C. § 1326(d) provides
a mechanism for aliens to collaterally attack prior
deportation orders in the scope of current criminal
proceedings for unlawful reentry, requiring the alien to make
a three-part showing: (i) that the alien exhausted any
administrative remedies that may have been available to seek
relief against that order, (ii) that the deportation
proceedings where the deportation order was issued deprived
the alien of the opportunity for judicial review, and (iii)
that the entry of the order was fundamentally unfair.
Mr.
Flores struggles with the first two elements because he did
not take a timely appeal from his deportation order in 2012.
A defendant who knowingly waives the right to appeal an order
of deportation fails to exhaust administrative remedies under
§ 1326(d). U.S. v. Melendez, 642 Fed.App. 859,
862 (10th Cir. 2016). In the absence of an
evidentiary showing, the Court cannot presume that the
defendant was precluded from seeking judicial review.
Id. at 863.
Mr.
Flores argues that his failure to timely appeal his
deportation order should be excused because the Immigration
Judge provided him with misinformation about his ability to
appeal. A failure to exhaust may be excused if the waiver of
appeal was premised on constitutionally relevant
misinformation conveyed by the immigration judge. U.S. v.
Cabrera, 571 Fed.Appx. 713, 718 (10th Cir. 2014). But
the misinformation Mr. Flores contends he was given by the
judge was “informing him that the grounds were for an
aggravated felony and a crime of violence conviction[, ]
legal conclusions that were wrong.” In other words, Mr.
Flores argues that because Dimaya deemed the
residual clause unconstitutional in 2017, the Immigration
Judge provided “misinformation” to him in 2012 by
not informing him that the grounds for his impending
deportation were constitutionally-deficient.
This
showing, taken as true, is insufficient. First, the
“misinformation” was not such at the time it was
given - essentially Mr. Flores argues that the Immigration
Judge should have addressed an issue that was not raised in
the proceeding, and indeed was not determined until 5 years
after the proceeding was concluded.
Second,
it is unclear how the “misinformation” was
relevant to an appeal. It is not clear how such legal error
discouraged or prevented Mr. Flores from timely initiating an
appeal.
Finally,
Mr. Flores' argument is foreclosed by U.S. v.
Varela-Cias, 425 Fed.Appx. 756, 760 (10th
Cir. 2011). There, the alien was deported in 2001 following a
conviction for the “aggravated felony” of driving
under the influence. In 2004, the Supreme Court held that
such offenses did not constitute crimes of violence (and
thus, not aggravated felonies). The alien re-entered the
United States in 2010, was apprehended, and charged with
unlawful re-entry. The alien sought to collaterally attack
the 2001 deportation order pursuant to § 1326(d), based
on the subsequent clarification that his prior conviction was
not an aggravated felony. Id. at 757 & n. 1. The
alien argued that he was denied the opportunity for judicial
review because the Immigration Judge had expressly advised
him that he was ineligible for relief from deportation when,
in fact, “at the time he was removed, he was in fact
not an aggravated felon and was eligible for cancellation of
removal in addition to being non-removable.”
Id. at 760. The 10th Circuit held that
the judge “did not mislead” the alien, and that
“while the [judge] erred in concluding that Varela-Cias
had committed an aggravated felony, the [judge] did not
deprive Varela-Cias of the right to judicial review because
he specifically informed him of his right to appeal to the
BIA.” Id.
Mr.
Flores is, for all practical purposes, identically-situated
to the alien in Varela-Cias. Both were lawful
permanent residents, deported after being found guilty of an
“aggravated felony, ” only to have subsequent
Supreme Court decisions nullify that finding. Both sought to
collaterally attack their deportation orders under §
1326(d), despite not having sought timely judicial
review.[1] Both argued that their failure to seek
judicial review was a result of the Immigration Judge
“misinforming” them about the validity of the
deportation orders against them. And in both cases, the
Immigration Judge informed them that they had the right to
take an appeal from the deportation order. Thus, the mere
fact that the Immigration Judge erred in finding the
predicate conviction to be an “aggravated felony”
- as the 10th Circuit acknowledged had occurred in
Varela-Cias as well - does not relieve Mr. Flores of
the failure to have taken the appropriate administrative and
judicial appeals under § 1326(d). Mr. Flores'
failure to take any appeals thus prevents him from satisfying
either of the first two elements of § 1326(d), requiring
denial of his motion to dismiss.
Mr.
Flores offers several creative arguments to avoid this
outcome. He argues that his patently-untimely appeal of his
deportation order in 2018 suffices to “exhaust”
his administrative appeals, thus satisfying the first element
of § 1326(d). Although the 10th Circuit has
yet to address this type of argument, the Fifth Circuit has
done so. This Court finds its rejection of that argument
persuasive. U.S. v. Cordova-Soto, 804 F.3d 714, 724
(5th Cir. 2015). To hold that even a
patently-untimely ...