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United States v. Tejeda-Tovar

United States District Court, D. Arizona

January 16, 2020

United States of America, Plaintiff,
v.
Luis Enrique Tejeda-Tovar, Defendant.

          ORDER

          HONORABLE JOHN J. TUCHI UNITED STATES DISTRICT JUDGE

         Defendant moved to dismiss the Indictment against him in the matter (Doc. 14, Mot.). Defendant challenges the validity of the removal order underlying the Indictment pursuant to 8 U.S.C. § 1326(d). The Government filed a response to Defendant's Motion (Doc. 17, Resp.), and Defendant then filed a Reply (Doc. 20, Reply). For the following reasons, the Court grants the Motion.

         I. FACTS

         A. Defendant's Background

         Defendant was born in Mexico but came to the United States as a small child with his mother and step-father. (Mot. Ex. 1.) He has never had any legal status in the United States. He has three brothers, though one is deceased. (Resp. at 8.) He lived in California until his removal in June 2012. (Mot. at 2.) Additionally, he is fluent in English. (Mot. Ex. 1.)

         Defendant has four children, though only his oldest had been born at the time of the challenged removal proceeding. (Mot. at 2.) Defendant did not graduate from high school, and at the time of his removal hearing, he worked as a seasonal worker. (Resp. at 8.) Defendant's entire criminal history prior to his removal hearing is unclear, but he had no immigration history before the hearing.[1] (Mot. at 17.)

         B. Defendant's Conviction Underlying Prior Removal

         On May 30, 2012, Defendant was served with a Notice to Appear charging him with being removable from the United States under INA § 212(a)(6)(A)(i) (being an alien present in the United States without having been admitted or paroled). (Mot. Ex. 3.) Defendant was also charged with removability under INA § 212(a)(2)(A)(i)(I) (being an alien convicted of a crime involving moral turpitude). (Mot. Ex. 3.)

         Defendant's Motion centers on his crime involving moral turpitude-Child Endangerment, in violation of Section 273a(a) of the California Penal Code.[2] (Mot. Ex. 2.) On July 13, 2010, Defendant was charged via Information with Count One-Child Endangerment with a Special Allegation of personal infliction of great bodily injury under circumstances involving domestic violence. (Mot. Ex. 2.). He was also charged with Count Two-Assault with Great Bodily Injury. (Mot. Ex. 2.). His oldest child was the victim of Defendant's crime that is the subject of this motion. (Resp. at 8.) In October 2010, Defendant pled no contest to Count One and was sentenced to four years in prison. (Mot. Ex. 2.) Defendant was not convicted of the Special Allegation. (Mot. Ex. 2.)

         Neither the charging document nor the judgment specify the conduct Defendant pled to. (Mot. Ex. 2.) The Abstract of Judgment lists his crime as “Great bodily harm to a child” and lists the applicable statute. (Mot. Ex. 2.) Similarly, the Information for Count One provides the name and section of the statute-Child Endangerment, California Penal Code Section 273a(a)-and then states the full statutory language. (Mot. Ex. 2.) The Information also lists the names, sections, and statutory language for the Special Allegation related to Count One, and for Count Two-Assault with Great Bodily Injury. (Mot. Ex. 2.)

         C. Defendant's Hearing Before the Immigration Judge

         On June 13, 2012, Defendant appeared before Immigration Judge (IJ) Scott M. Jefferies. (Mot. Ex. 4.) At the hearing, the IJ advised Defendant of the charges of removability against him and that he had the right to be represented by an attorney. (Mot. Ex. 4.) Defendant opted to proceed pro se. (Mot. Ex. 4.)

         Next, the IJ questioned Defendant regarding the grounds for removability and confirmed that Defendant is not a citizen of the United States, entered the country illegally, and was convicted of a crime involving moral turpitude. (Mot. Ex. 4.) Consequently, the IJ found “that the charges of removal have been sustained.” (Mot. Ex. 4.)

         Finally, the IJ evaluated Defendant's eligibility for relief from removal. The following exchange comprises the IJ's entire evaluation:

IJ: By your admissions, I find that the charges of removal have been sustained. If I order you deported, to which country do you want to go?
D: Uh, Mexico.
IJ: Are you afraid to go back to Mexico?
D: No, sir.
IJ: Well sir, um, it doesn't appear that you're eligible for any relief. The only thing that you might be eligible for would be voluntary departure, but because of your crime and your time that you spent-How long did you spend in prison?
D: Two years.
IJ: Two years? You'd not be eligible for voluntary departure, so I will order you removed from the United States to Mexico. Do you want to appeal my decision to a higher court?
D: No, sir.
Gov: The government waives appeal.
IJ:It's a final order. Thank you, sir. ...

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