United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Defendant Carlos Aaron Melgoza-Paniagua has moved to dismiss the indictment. Doc. 31. The question presented by his motion is whether the Utah crime of attempted forcible sexual abuse, to which Melgoza pled guilty in 2010, was a crime of violence under 18 U.S.C. § 16(b). The Court concludes that immigration authorities did not err when they found it to be a crime of violence, and therefore will deny Defendant's motion.
Defendant Melgoza was born in Mexico and entered the United States with his family when he was a child. Doc. 32-1. He continued to live in the United States until he pled guilty in Utah to attempted forcible sexual abuse. Id. He was sentenced to three years' probation and 365 days in jail for this crime. Id. In September of 2010, Melgoza was served with a "Notice of Intent to Issue a Final Administrative Order." Id. at 16. The Notice stated that Melgoza was deportable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien who had been convicted of an aggravated felony. Doc. 32-1 at 16. In the Final Administrative Removal Order, an immigration official based in Salt Lake City, Utah, found that because Melgoza had an aggravated felony he was deportable and ineligible for any relief from removal. Id. at 19. Melgoza was deported to Mexico on September 9, 2010. See Doc. 1. In November of 2013, Melgoza was found in Arizona and charged with illegal reentry under 8 U.S.C. § 1326. Id. Melgoza argues that his original removal proceedings were fundamentally unfair because his conviction for forcible sexual abuse did not constitute a crime of violence and therefore was not an aggravated felony. Doc. 31.
II. Due Process and Removal Orders.
An alien who has been deported and subsequently reenters the country may be charged under 8 U.S.C. § 1326. The alien may not challenge the validity of his underlying deportation unless he can demonstrate that: "(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." Id. § 1326(d); see United States v. Muro-Inclan, 249 F.3d 1180, 1182 (9th Cir. 2001). "An underlying removal order is fundamentally unfair' if: (1) [a defendant's] due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.'" United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (quoting United States v. Zarate-Martinez, 133 F.3d 1194, 1197 (9th Cir. 1998)).
Melgoza argues that his underlying deportation order was fundamentally unfair because he was deprived of an opportunity for judicial review and was not advised of his right to discretionary relief. Doc. 31 at 2. Ordinarily, a person in a removal proceeding has a due process right to a meaningful opportunity for judicial review of his deportation order. United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). When a person is eligible for relief from deportation, an immigration judge ("IJ") "must advise the alien of this possibility and give him the opportunity to develop the issue." Moran-Enriquez v. INS, 884 F.2d 420, 423 (9th Cir. 1989). "[A]n IJ's failure to so advise an alien violates due process and can serve as the basis for a collateral attack to a deportation order where, as here, the order is used as the predicate for an illegal reentry charge under § 1326." United States v. Lopez-Velasquez, 629 F.3d 894, 897 (9th Cir. 2010).
An alien who has been convicted of an aggravated felony does not have these due process rights. He is subject to expedited removal and ineligible for any discretionary relief. 8 U.S.C. §§ 1228(b), 1229a. In Melgoza's case, the Utah-based immigration officials determined that his crime of forcible sexual abuse was a crime of violence and therefore an aggravated felony. See Doc. 32-1 at 16. If the officials were wrong, then Melgoza was denied due process and his removal order cannot serve as a predicate for the charge of illegal reentry under 8 U.S.C. § 1326.
III. Applicable Law.
There is an abundance of circuit court case law on whether particular offenses are crimes of violence. Before deciding whether Melgoza's conviction for forcible sexual abuse is such a crime, the Court must decide which circuit's law to apply.
Melgoza's removal proceedings occurred in Utah, which is in the Tenth Circuit. Now that Melgoza collaterally attacks his removal proceedings in the Ninth Circuit, the issue becomes whether to apply Ninth or Tenth Circuit law. The Ninth Circuit has not directly addressed this issue, although it has held in a related context that courts should look to the "applicable law at the time of the removal hearing, " not to subsequent developments in case law. See United States v. Vidal-Mendoza, 705 F.3d 1012, 1013 (9th Cir. 2013). The Court likewise concludes that it should look to applicable law at the time and place of Melgoza's removal, not to law from the circuit where he subsequently is charged with illegal reentry.
During Melgoza's removal proceedings, federal immigration officials in Utah would have followed Tenth Circuit law in deciding whether the Utah crime of forcible sexual abuse constitutes a crime of violence. In now deciding whether those officials made the right decision - whether Melgoza's Utah felony was in fact a crime of violence for federal immigration purposes - the Court should also apply Tenth Circuit law. It would make little sense, and be patently unfair to the government, for the Court to apply Ninth Circuit crime-of-violence law and conclude that the Utah immigration officials erred when they applied their own circuit's law. The Court cannot reasonably expect that those officials somehow should have foreseen that Defendant would return to the United States illegally, be charged with illegal reentry in the Ninth Circuit, and succeed in persuading a court to apply Ninth Circuit law to the decision they were charged with making. As has been said in other contexts, immigration officials are not required to be clairvoyant. Muro-Inclan, 249 F.3d at 1183. The Court therefore will apply Tenth Circuit law, and respectfully disagrees with courts that have reasoned otherwise. See, e.g., United States v. Nahun-Torres, No. CR 12-306-SI, 2013 WL 140047 (N.D. Cal. Jan. 10, 2013).
At the time of Melgoza's conviction, Utah Code Ann. § 76-5-404 defined the crime of ...