United States v. Rubisel Delcarmen-Abarca ( 2021 )

FILED
NOT FOR PUBLICATION FEB 18 2021
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30153
Plaintiff-Appellant, D.C. No. 4:19-cr—06005-SAB-1
v.
MEMORANDUM*
RUBISEL DELCARMEN-ABARCA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Bastian, District Judge, Presiding
Argued and Submitted December 7, 2020
San Francisco, California
Before: BOGGS,** M. SMITH, and BENNETT, Circuit Judges
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
The United States challenges the district court’s dismissal of an indictment
charging Rubisel Delcarmen-Abarca with illegal reentry after removal, in violation
of 8 U.S.C. § 1326. Applying the holding of our recently published opinion in
United States v. Bastide-Hernandez, No. 19-30006 (9th Cir. Feb. 2, 2021),
https://cdn.ca9.uscourts.gov/datastore/opinions/ 2021/02/02/19-30006.pdf, we
reverse and remand.
I
Delcarmen-Abarca, a native and citizen of Mexico, entered the United States
without inspection in 1986, at age 23. He is married and has a United States citizen
daughter. He cannot read or write in Spanish or English. On September 17, 2003,
the Bureau of Immigration and Customs Enforcement (“ICE”) placed him in
removal proceedings for entering without inspection, took him into custody, and
personally served Delcarmen-Abarca with a notice to appear (“NTA”), which
ordered him to appear at a “date, time, and place to be set” for his removal hearing.
On September 26, 2003, the Executive Office of Immigration Review
(“EOIR”) personally served Delcarmen-Abarca a notice of hearing of removal
(“NOH”) providing the time, date, and location of his hearing: 8:30 am, October 1,
2003, at the immigration court in Lancaster, California. Delcarmen-Abarca
appeared in person at his removal hearing, was found removable by the immigration
judge (“IJ”), and was removed to Mexico on October 2, 2003.
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In December 2018, Delcarmen-Abarca reentered the United States, was again
taken into ICE custody, and in January 2019, was indicted for illegally reentering
the United States after removal, in violation of 8 U.S.C. § 1326. Delcarmen-Abarca
filed a motion to dismiss, arguing that the immigration court lacked subject-matter
jurisdiction and, in the alternative, that the IJ violated his due-process rights by
finding him ineligible for voluntary departure.
The district court held that the immigration court lacked jurisdiction to issue
the underlying removal order because the NTA lacked necessary time, date, and
location information, the lack of location information was not cured by a subsequent
NOH, and the NOH, even if otherwise curative, did not give the defendant 10 days
of notice after the NTA and prior to the removal hearing, as specified by 8 U.S.C. §
1229(b)(1).1
II
The district court opinion relied on, Karingithi v. Whitaker, 913 F.3d 1158(9th Cir. 2019), and was issued before Aguilar Fermin v. Barr, 958 F.3d 887 (9th
Cir. 2020). In Bastide-Hernandez, we recently clarified that Karingithi and
Aguilar Fermin compel the conclusion that “the jurisdiction of the immigration
court vests upon the filing of an NTA, even one that does not at that time inform
1
The district court did not address Delcarmen-Abarca’s voluntary-departure
argument.
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the alien of the time, date, and location of the hearing.” Bastide-Hernandez, slip
op. at 6. Thus, the district court erred in dismissing the indictment, as the
immigration court had jurisdiction once the NTA was filed there, even if the NTA
had defects.
Bastide-Hernandez also held that any defects in an NTA can be addressed
by collateral attack if the prerequisites of 8 U.S.C. § 1326(d) are met. Bastide-
Hernandez, slip op. at 8-10. On remand, Delcarmen-Abarca may be able to
collaterally attack the underlying removal order if he can meet the requirements of
8 U.S.C. § 1326(d).
III
In the interest of judicial economy and at the request of both parties, we will
address Delcarmen-Abarca’s claim that his due-process rights were violated in the
underlying removal proceeding when the IJ indicated that Delcarmen-Abarca was
ineligible for voluntary departure and denied him the opportunity to apply for it.
Conviction for an aggravated felony renders a noncitizen in removal
proceedings ineligible for most forms of discretionary relief, including voluntary
departure. United States v. Alvarado-Pineda, 774 F.3d 1198, 1201 (9th Cir. 2014);
8 U.S.C. § 1229c(a)(1). In 1999, Delcarmen-Abarca was convicted of possession of
a controlled substance (cocaine) under California law. Cal Health & Safety Code §
11350(a). However, simple possession is not punishable as a federal felony under
4
the Federal Controlled Substances Act (“CSA”). 21 U.S.C. § 844(a). Nonetheless,
in 2000, this court held that simple possession of a controlled substance was included
in the term “aggravated felony” for purposes of enhancing a sentence for illegal
reentry, 8 U.S.C. § 1101(a)(43), if such conduct constituted a felony under state law,
even if it was not a felony under federal law. United States v. Ibarra-Galindo, 206
F.3d 1337, 1340 (9th Cir. 2000) (overruled on other grounds as recognized by
United States v. Figueroa-Ocampo, 494 F.3d 1211, 1216 (9th Cir. 2007)). In 2002,
the Board of Immigration Appeals also held that in federal circuits, such as the
Ninth, that had not ruled to the contrary, state felony convictions constitute
aggravated felonies in immigration cases even where such conduct did not constitute
a felony under federal law. Matter of Yanez-Garcia, 23 I. & N. Dec. 390, 397 (BIA
2002). Consistent with this case law, in 2003, the IJ held Delcarmen-Abarca
ineligible for discretionary relief and ordered him removed.
In 2004, this court changed course, holding that a state felony conviction that
would be a federal misdemeanor does not constitute a felony for immigration
purposes. Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 910 (9th Cir. 2004). An IJ
has a duty to inform noncitizens of relief for which they are apparently eligible. 8
C.F.R. § 1240.11(a)(2). But that duty is limited to eligibility for relief as it exists
under applicable law at the time of the removal hearing. United States v. Vidal-
Mendoza, 705 F.3d 1012, 1017 (9th Cir. 2013). Eligibility for relief in Delcarmen-
5
Abarca’s circumstances changed one year after he was ordered removed. “IJs are
not expected to be clairvoyant.” Ibid (cleaned up). The IJ correctly applied the law
as it existed at the time Delcarmen-Abarca was in removal proceedings and did not
err by telling him he was ineligible for voluntary departure.
The district court is REVERSED, and the case is REMANDED.
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