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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

SALVADOR HERIBERTO PINEDARODRIGUEZ,

Defendant.

Case No. 17-CR-00061-LHK 

ORDER GRANTING MOTION TO 

DISMISS INDICTMENT WITH 

PREJUDICE

Re: Dkt. No. 20

Before the Court is Defendant Salvador Heriberto Pineda-Rodriguez’s (“Defendant”) 

motion to dismiss the indictment for illegal reentry following deportation in violation of 8 U.S.C. 

§ 1326. ECF No. 20 (“Mot.”). Relying on Pereira v. Sessions, 138 S. Ct. 2105 (2018), Defendant 

contends that the immigration judge who issued Defendant’s 2012 removal order did not have 

jurisdiction to issue such an order because Defendant’s Notice to Appear for his removal 

proceedings did not state a date, time, and place for the removal proceedings. Id. at 4–17. 

Defendant additionally contends that his 2012 removal was fundamentally unfair because the 

immigration judge failed to advise Defendant of his eligibility for pre-hearing voluntary departure. 

Id. at 17–23. Having considered the filings of the parties, the relevant law, and the record in this 

case, the Court GRANTS Defendant’s motion to dismiss the indictment with prejudice.
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I. BACKGROUND

A. Factual Background

On September 17, 2012, Defendant was moved from the Monterey County Jail in Salinas

to a San Jose Immigration and Customs Enforcement (“ICE”) facility. ECF No. 25 (“PinedaRodriguez Decl.”) ¶ 2. There, Defendant was served with a Notice to Appear for removal 

proceedings under 8 U.S.C. § 1229. See Mot., Exh. A (“Notice to Appear”). The Notice to Appear 

set forth factual allegations against Defendant regarding his unlawful presence in the United 

States, but did not state a date and time for his removal hearing. Id. Instead, the Notice to Appear 

stated that the date and time were “to be set.” Id.

On September 17, 2012, Defendant was also served with a Form I-826 Notification of 

Rights and Request for Disposition in the Spanish language. ECF No. 23-1 (“Norris Decl.”) at 2, 

Exh. 2 (“Request for Disposition”). Defendant marked the third box, which provided that he 

acknowledged that he was illegally present in the United States, waived his right to a hearing 

before an immigration judge, and that he wanted to return to his home country as soon as 

arrangements could be made.” See Request for Disposition. Deportation Officer Courtney Norris, 

whose declaration was filed in support of the government’s opposition to the instant motion,

declared that “[t]his request for disposition is referred to as Voluntary Departure.” Norris Decl. at 

2. Officer Norris also declared that Defendant’s request was denied. Id. Officer Norris explained 

that it was the policy of the Field Office Directors

1

to not grant requests for voluntary departure to 

criminal aliens and that because Defendant had been convicted of transporting a controlled 

substance and served 178 days in jail, he would not be granted voluntary departure. Id. at 2–3. 

In support of his instant motion, Defendant filed a declaration explaining that when he was 

first served with the Notice to Appear, Defendant wanted to voluntarily depart to Mexico as soon 

as possible. Pineda-Rodriguez Decl. ¶¶ 3–6. However, Defendant explained that the ICE officer 

said no and told Defendant that Defendant had to go to Arizona to meet with an immigration 

 

1

It is not immediately clear from the parties’ filings whether this was the policy of the San 

Francisco or San Jose Field Office Directors. Compare Norris Decl. at 2, with ECF No. 34 (“Supp. 

Reply”) at 1.
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judge. Id. ¶ 5. Defendant also declared that although he signed the Request for Disposition form, 

the officer did not explain to Defendant that this was a request for voluntary departure. Id. ¶ 10. 

Defendant also declared that the officer did not tell him that his request was denied. Id. 

Eventually, Defendant was transferred to an ICE detention center in Eloy, Arizona. Id. ¶ 7.

On October 4, 2012, Defendant’s removal hearing took place at 58 UI detention facility in Eloy, 

Arizona. See Mot., Exh. B (“Removal Proceeding”); see also Mot., Exh. E (“Transcript”) at 1. The 

Immigration Judge (“IJ”) presided over the hearing in a group-style format, which included 

Defendant and other persons, who were assisted by a Spanish interpreter. See Transcript at 1. The 

IJ addressed all the defendants at once to explain their rights, before proceeding to discuss each 

individuals’ case. See id. at 1–8. During the group hearing, the IJ advised as follows with regards 

to voluntary departure:

When I call your case, I will also discuss with you whether or not there are other 

forms of relief available to you. This may also include but is not limited to 

cancelation [sic] of removal, adjustment of status or voluntary departure. If you are 

removable, I will also question you to see if you qualify for voluntary departure prior 

to the completion of proceeding. You may be eligible for voluntary departure at the 

beginning or at the end of proceeding.

In order to qualify for voluntary departure one must establish that one is worthy of 

the privilege of voluntary departure and that a favorable exercise of discretion is 

warranted. Factors to be considered include the following; manner of entry into the 

United States, years of residence in the United States, family, business and societal 

ties, record of employment, compliance with other laws, a systemic of practice [sic], 

humanitarian consideration, law enforcement contact, prior immigration history and 

any record of good conduct or misconduct.

In order to qualify for what is called pre conclusion voluntary departure, or in other 

words, voluntary departure prior to the completion of proceedings one must agree to 

waive appeal of all other immigration issues. If you are granted pre conclusion 

voluntary departure and if during the period of voluntary departure, you file either 

motions to reopen or motions to reconsider[,] then the grant of voluntary departure 

will be terminated automatically and an alternate order of removal will take effect 

immediately. If you fail to depart within the voluntary departure period, there is a 

presumptive civil monetary penalty of $3,000.00.

Id. at 4–5.

The IJ also addressed the Defendant individually. See id. at 8–18. The conversation as to 
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the availability of voluntary departure during the individual portion of the removal proceeding 

occurred as follows. First, the IJ asked the Defendant about his family, and Defendant explained 

that he has two children, aged three years and one and half years, who were born in the United 

States and whose mother is a United States citizen. Id. at 12–13. Defendant is not married to the 

mother of his children. Id. at 13. Then the IJ asked the government about the government’s 

position regarding voluntary departure. Id. at 13. Government counsel responded “opposed.” Id.

The IJ next asked how long Defendant has lived in the United States, to which Defendant replied 

he had been in the United States for ten years and had never left the United States during that tenyear period. Id. at 13–14. The IJ discussed options of cancellation or expulsion. Id. at 14. 

However, the government pointed out Defendant was convicted in August of 2012 of transport of 

a controlled substance in violation of California Health and Safety Code 11379. Id. The IJ then 

stated: “Now, as I said, I don’t know if you are eligible for the benefit or not but I could give you 

[a] pre-application to review and I can postpone your case if that’s what you want.” Id. at 14–15. 

The IJ then again asked the government about the government’s position regarding 

voluntary departure on discretion. Id. at 15. Government counsel responded “opposed.” Id. The IJ 

then advised Defendant that he “appear[ed] to be eligible for flight of voluntary departure.” Id. at 

15. The IJ continued, “[i]f you’re granted voluntary departure, it may make it easier for you to 

return legally to this country. Let’s say your children petition for you to receive an immigration 

benefit or you marry the mother of the children, or something along those lines.” Id. “But the 

earliest available date that I can give a voluntary departure hearing is October 23[,] [2012].” Id.

Defendant asked about the voluntary departure option, and the IJ clarified that the hearing 

would be on October 23, 2012, and that voluntary departure is not guaranteed because it would 

require the presentation of evidence and the weighing of negative and positive factors, so the IJ 

could not state the outcome until that time. Id. at 16. Defendant replied “[n]o, I don’t want to fight 

anything, I want to leave today.” Id. the IJ stated: “Then the record shall reflect that the respondent 

was offered . . . a hearing for voluntary departure. Respondent declined . . . the hearing and has 

opted for an order of removal today to the state of Mexico.” Id. at 17. 
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Defendant waived his right to appeal. Id. On October 4, 2012, the IJ ordered Defendant 

removed to Mexico. Id. at 17; see also Mot., Exh. D (“Removal Order”). On October 5, 2012, 

Defendant was removed. See Mot., Exh. D (“Warrant of Removal”). 

According to Defendant’s motion, although the IJ discussed post-conclusion voluntary 

departure, the IJ failed to inform Defendant that he was also eligible for pre-hearing voluntary 

departure. Reply at 1–2. Defendant added in his declaration that at his 2012 removal hearing, he 

did not know he was eligible for pre-hearing voluntary departure and that Defendant only became 

aware that he was eligible for pre-hearing voluntary departure when his attorney in the instant case 

discussed it with Defendant. Pineda-Rodriguez Decl. ¶¶ 11, 13. Defendant explained that he told 

the IJ that he did not want to wait until October 23, 2012 for a hearing on voluntary departure 

because Defendant wanted to leave sooner and had already asked the ICE officers to let him leave 

voluntarily when he was in San Jose. Id. ¶ 12. Defendant also declared that his family would have 

been able to give him money to purchase a flight to Mexico if he had been granted pre-hearing 

voluntary departure. Id. ¶ 14. Finally, Defendant declared that if the IJ had told him during his 

2012 removal hearing that he was eligible for pre-hearing voluntary departure and did not have to 

continue his case until October 23, 2012, he “would have requested to voluntarily depart as soon 

as possible and then contacted [his] family to get the financial assistance for [his] return trip to 

Mexico.” Id. ¶ 15.

B. Procedural History

On February 2, 2017, a grand jury in the Northern District of California returned an 

indictment, charging Defendant with one count of a violation of 8 U.S.C. § 1326, Illegal Re-Entry 

Following Deportation. ECF No. 2. Defendant filed the instant motion to dismiss on January 2, 

2018. See Mot. On January 28, 2019, the Ninth Circuit issued its ruling in Karingithi v. Whitaker, 

913 F.3d 1158 (9th Cir. 2019), in which the Ninth Circuit held that an immigration judge had 

jurisdiction over removal proceedings even though the Notice to Appear lacked a date and time for 

the removal proceedings. Therefore, on January 28, 2019, the parties filed a stipulation with a 

proposed order to modify the briefing schedule so as to provide the parties with more time to 
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address Karingithi, ECF No. 21. The Court granted that request on January 29, 2019. ECF No. 22. 

The government filed an opposition on February 4, 2019. ECF No. 23 (“Opp’n). Defendant 

replied on February 15, 2019. ECF No. 24 (“Reply”). On February 15, 2019, Defendant filed a 

declaration in support of the Reply, ECF No. 25, and on February 21, 2019, Defendant filed a 

supplemental exhibit to his Reply, ECF No. 26. 

On March 5, 2019, the Court requested additional briefing from the parties on the prehearing voluntary departure issue. ECF No. 28. On March 13, 2019, the government filed its 

additional brief. ECF No. 33 (“Supp. Opp’n”). On March 14, 2019, Defendant filed his 

supplemental brief. ECF No. 34 (“Supp. Reply”).

II. LEGAL STANDARD

A. Motion to Dismiss Indictment 

Under Federal Rule of Criminal Procedure 12(b)(3)(B)(v), a defendant may move to 

dismiss an indictment on the ground that the indictment “fail[s] to state an offense.” In considering 

a motion to dismiss an indictment, a court must accept the allegations in the indictment as true and 

“analyz[e] whether a cognizable offense has been charged.” United States v. Boren, 278 F.3d 911, 

914 (9th Cir. 2002). “In ruling on a pre-trial motion to dismiss an indictment for failure to state an 

offense, the district court is bound by the four corners of the indictment.” Id. A motion to dismiss 

an indictment can be determined before trial “if it involves questions of law rather than fact.” 

United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.), cert. denied, 478 U.S. 

1007 (1986).

B. Collateral Attack on a Deportation 

“For a defendant to be convicted of illegal reentry under 8 U.S.C. § 1326, the Government 

must establish that the defendant left the United States under order of exclusion, deportation, or 

removal, and then illegally reentered.” United States v. Raya–Vaca, 771 F.3d 1195, 1201 (9th Cir. 

2014) (internal quotation marks and citation omitted). “A defendant charged under § 1326 has a 

due process right to collaterally attack his removal order because the removal order serves as a 

predicate element of his conviction.” Id. (internal quotation marks and citation omitted). To 
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demonstrate that a prior deportation cannot serve as the basis of an indictment for illegal reentry, 8 

U.S.C. § 1326(d) requires that a defendant “demonstrate that (1) he exhausted the administrative 

remedies available for seeking relief from the predicate removal order; (2) the deportation 

proceedings ‘improperly deprived [him] of the opportunity for judicial review’; and (3) the 

removal order was ‘fundamentally unfair.’” Raya–Vaca, 771 F.3d at 1201 (quoting 8 U.S.C. § 

1326(d)) (brackets in original). “To satisfy the third prong—that the order was fundamentally 

unfair—the defendant bears the burden of establishing both that the deportation proceeding 

violated his due process rights and that the violation caused prejudice.” Id. (internal quotation 

marks, citation, and brackets omitted).

III. DISCUSSION

The Defendant argues that the Indictment must be dismissed, and that the removal was 

“fundamentally unfair” for two reasons. First, Defendant argues that his 2012 removal cannot be 

relied upon to support the instant prosecution because the IJ lacked jurisdiction to order 

Defendant’s removal. See Mot. at 4–17. In particular, Defendant relies on the United States 

Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), to argue that a Notice to 

Appear must contain a time and place for a removal hearing in order to vest the IJ with 

jurisdiction. Because Defendant’s Notice to Appear in the underlying removal proceeding did not 

contain time and date information, Defendant argues the IJ did not have jurisdiction to issue a 

removal order. Second, Defendant argues that his 2012 removal was fundamentally unfair because 

the immigration judge failed to advise Defendant of his eligibility for pre-hearing voluntary 

departure and failed to provide Defendant an opportunity to apply for that remedy, and that the 

IJ’s failure to advise substantially prejudiced Defendant. Id. at 17–23. The Court explores each of 

Defendant’s arguments in turn. 

A. Defendant’s Pereira-Based Challenge Fails in Light of Karingithi 

Defendant filed his motion on January 2, 2019. See Mot. On January 28, 2019, the Ninth 

Circuit issued its ruling in Karingithi v. Whitaker, 913 F.3d 1158 (9th Cir. 2019), in which the 

Ninth Circuit held that an immigration judge had jurisdiction over removal proceedings even 
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though the Notice to Appear lacked a date and time for the removal proceedings. Specifically, the 

Ninth Circuit held as follows. 

First, the Immigration and Nationality Act (“INA”) regulations and not the INA statute 

governed the requirements for a Notice of Appear and thus defined when the immigration judge’s 

jurisdiction vests. Id. at 1158–59 (citing 8 C.F.R. § 1003.13, 1003.14(a)). Under the relevant 

regulations, “[j]urisdiction vests, and proceedings before an Immigration Judge commence, when 

a charging document is filed with the Immigration Court by the Service.” 8 C.F.R. § 1003.14(a). A 

“[c]harging document means the written instrument which initiates a proceeding before an 

Immigration Judge,” and includes a “Notice to Appear.” 8 C.F.R. § 1003.13. Both the INA statute 

and regulations define a “Notice to Appear.” The statute at 8 U.S.C. § 1229(a)(1)(G)(i) provides 

that in removal proceedings, written notice referred to as a “Notice to Appear” shall be given to 

the alien specifying, among other things, the “time and place at which the proceedings will be 

held.” The regulation at 8 C.F.R. § 1003.15 provides that a Notice to Appear “must also include” 

much of the same information as required by statute under 8 U.S.C. § 1229(a), except that the 

requirement of the “time and place” of the removal proceeding is omitted. The Ninth Circuit in 

Karingithi explained that because the regulations define when jurisdiction vests, the regulatory 

definition for “Notice to Appear” also necessarily governs when a Notice to Appear is sufficient 

for jurisdictional purposes. Karingithi, 913 F.3d at 1160. Therefore, the Ninth Circuit explained 

that pursuant to the regulations, a Notice to Appear need not include time and date information to 

vest jurisdiction with the immigration judge. Id.

Second, the Ninth Circuit found Pereira inapplicable to the issue regarding an immigration 

judge’s jurisdiction in removal proceedings. See id. at 1160–61. The Ninth Circuit explained that 

Pereira was limited to the narrow context of the stop-time rule. Id. Moreover, the Ninth Circuit 

was particularly persuaded by the fact that the stop-time rule at issue in Pereira concerned the 

stop-time statute (8 U.S.C. § 1229b(d)(1)) that specifically cross-referenced 8 U.S.C. § 1229(a), 

the statute defining a “Notice to Appear.” See id. By contrast, the regulation regarding an 

immigration judge’s jurisdiction in removal proceedings does not cross-reference 8 U.S.C. § 
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1229(a), the statute defining a “Notice to Appear.” As the Ninth Circuit stated, “[t]here is no 

‘glue’ to bind § 1229(a) and the jurisdictional regulations [at issue here]: the regulations do not 

reference § 1229(a), which itself makes no mention of the IJ’s jurisdiction.” Id.

Therefore, applying the Ninth Circuit’s reasoning in Karingithi, the Court finds that in the 

instant case, Defendant’s Notice to Appear that lacked date and time information was still 

sufficient to vest the immigration judge in Defendant’s underlying removal proceeding with 

jurisdiction. Thus, Defendant’s collateral attack on this ground fails.

Further, the Court notes that the instant Defendant had actual notice of his removal 

proceeding because he was detained and physically brought to his removal proceeding. See 

Karingithi, 913 F.3d at 1159 (“We also note that the petitioner, Serah Njoki Karingithi, had actual 

notice of the hearings.”). Such actual notice defeats Defendant’s arguments regarding due process 

and prejudice. See, e.g., Farhoud v. I.N.S., 122 F.3d 794, 796 (9th Cir. 1997) (“Due process is 

satisfied if service is conducted in a manner ‘reasonably calculated’ to ensure that notice reaches 

the alien.”); United States v. Bischsel, 395 F.3d 1053, 1056 (9th Cir. 2005) (“[A]ctual notice is the 

best notice.”). 

Finally, in his reply, Defendant raises several arguments for why Karingithi was wrongly 

decided. See Reply at 7–15. Defendant also suggests that the Court should stay his case pending 

resolution of the petition for rehearing en banc in Karingithi and any subsequent petition for 

certiorari. Id. at 15. Although the Ninth Circuit panel may ultimately prove incorrect in its 

determination, “once a federal circuit court issues a decision, the district courts within that circuit 

are bound to follow it and have no authority to await a ruling by the Supreme Court before 

applying the circuit court’s decision as binding authority.” Yong v. I.N.S., 208 F.3d 1116, 1119 n.2 

(9th Cir. 2000). Thus, the Court declines Defendant’s invitation to second guess the Ninth 

Circuit’s Karingithi decision and DENIES Defendant’s request to stay his case pending the 

petition for rehearing en banc in Karingithi. 

B. Defendant’s § 1326 Indictment Must be Dismissed Because the IJ Failed to 

Meaningfully Advise Defendant of His Right to Seek Pre-Hearing Voluntary 

Departure
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The Court now turns to Defendant’s argument that his 2012 removal was fundamentally 

unfair because the immigration judge failed to advise Defendant of his eligibility for pre-hearing 

voluntary departure and failed to provide Defendant the opportunity to apply for that remedy. Mot

at 17–23; Reply at 1–7. The Court first discusses whether there was a due process violation and 

second, whether Defendant was prejudiced. The Court third discusses the exhaustion and judicial 

review requirement. See 8 U.S.C. § 1326(d). For the reasons given below, the Court GRANTS 

Defendant’s motion to dismiss the indictment.

1. Due Process Violation

First, the Court agrees with Defendant that Defendant was deprived of due process during 

the 2012 removal because he was not adequately informed of his right to apply for pre-hearing 

voluntary departure. 

“[W]here the record contains an inference that the petitioner is eligible for relief from 

deportation, ‘the IJ must advise the alien of this possibility and give him the opportunity to 

develop the issue.’” United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000); 8 C.F.R. § 

240.11(a)(2). “The requirement that the IJ inform an alien of his or her ability to apply for relief 

from removal is mandatory, and failure to so inform the alien of his or her eligibility for relief 

from removal is a denial of due process that invalidates the underlying deportation proceeding.” 

United States v. Ubaldo–Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (internal quotation marks, 

alterations, and citation omitted); see also Arrieta, 224 F.3d at 1079 (explaining that the 

requirement to advise the alien of the possibility of relief and give him the opportunity to develop 

the issue is “mandatory.”). The Ninth Circuit has held that this requirement specifically applies to 

voluntary departure, see United States v. Arias–Ordonez, 597 F.3d 972 (9th Cir. 2010) (finding 

due process violation when IJ failed to inform alien of eligibility for pre-hearing voluntary

departure relief); United States v. Ortiz–Lopez, 385 F.3d 1202 (9th Cir. 2004) (same), and that the 

advice must be “meaningful[ ].” See United States v. Melendez–Castro, 671 F.3d 950, 952 (9th 

Cir. 2012) (finding that the alien “was not meaningfully advised of his right to seek voluntary 

departure”).
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As an initial matter, the government’s argument regarding the fact that Defendant signed a 

Form I-826, that indicated that Defendant acknowledged that he was illegally present in the United 

States, waived his right to a hearing before an immigration judge, and that Defendant wanted to 

return to his home country as soon as arrangements could be made, see Request for Disposition, is

of no matter because the government has not demonstrated that Defendant understood the Form I826 to be a request for voluntary departure. See Pineda-Rodriguez Decl. ¶¶ 3–6, 10. Moreover, 

regardless of the Field Office Director’s policy to not grant requests for voluntary departure to 

criminal aliens, the Ninth Circuit has specifically held that immigration judges have an 

independent duty to advise aliens of their apparent eligibility for relief during removal 

proceedings. See United States v. Muro-Inclan, 249 F.3d 1180, 1183 (9th Cir. 2001) (“The 

immigration judge shall inform the respondent of his or her apparent eligibility to apply for . . . [a 

waiver of deportation] and shall afford the respondent an opportunity to make application 

therefore during the hearing” (alterations in original) (citations omitted)). Indeed, in the Ninth 

Circuit, an immigration judge’s failure to advise an alien regarding his right to pre-hearing 

voluntary departure is a due process error and constitutes a valid ground for a collateral attack of

an underlying removal in a prosecution under 8 U.S.C. ¶ 1326. See, e.g., United States v. OrtizLopez, 385 F.3d 1202, 1204 (9th Cir. 2004) (failure to advise of pre-hearing voluntary departure is 

due process violation); United States v. Nungaray-Rubalcaba, 229 F. App’x 436 (9th Cir. 2007) 

(same); United States v. Baulto-Pulido, 219 F. App’x 717 (9th Cir. 2007) (same); United States v. 

Alonza-Mendoza, 239 F. App’x 330 (9th Cir. 2007) (same); United States v. Lopez-Menera, 542 F. 

Supp. 2d 1025 (N.D. Cal. 2008) (same).2

Here, the Court agrees with Defendant that the IJ did not meaningfully advise Defendant of 

his right to seek pre-hearing voluntary departure. The IJ’s discussion of voluntary departure at 

 

2 The Court also rejects the government’s argument that the hearing with the IJ occurred because 

Defendant himself requested a pre-hearing voluntary departure. See Supp. Opp’n at 1–2. That 

argument is not supported by the record. Indeed, the IJ did not discuss voluntary departure relief 

with Defendant until after she found Defendant removable. See Removal Hearing; see also 

Transcript. 
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Defendant’s removal hearing first consisted of an advisement to the entire group during the group 

hearing, which preceded Defendant’s individual hearing. In particular, the IJ stated that:

When I call your case, I will also discuss with you whether or not there are other 

forms of relief available to you. This may also include but is not limited to 

cancelation [sic] of removal, adjustment of status or voluntary departure. If you are 

removable, I will also question you to see if you qualify for voluntary departure prior 

to the completion of proceeding. You may be eligible for voluntary departure at the 

beginning or at the end of proceeding.

See Removal Proceeding; see also Transcript at 4–5. The IJ also explained during the group 

hearing what factors the IJ would consider during the individual hearings in order to determine if 

an individual was qualified for voluntary departure. See id. 

Under Ninth Circuit law, however, the IJ’s group advisement regarding pre-hearing 

voluntary department failed to meaningfully advise Defendant. For instance, in United States v. 

Rodriguez-Arroyo, the Ninth Circuit dismissed a § 1326 indictment because the defendant was not 

adequately informed of his right to apply for voluntary departure. 467 F. App’x 746, 746–48 (9th 

Cir. 2012). In Rodriguez-Arroyo, like in the instant case, the IJ advised defendant of the 

availability of voluntary departure during a group hearing, told the aliens about some of the

benefits of voluntary departure, and advised the group that when the IJ would speak with each of 

them individually, the IJ would ask questions about their equities. See id. The Ninth Circuit found

of the group advisement in Rodriguez-Arroyo that although defendant “was advised of the 

availability of voluntary departure,” he “‘was not meaningfully advised of his right to seek’ such 

relief or to file an application seeking it.” Id. at 747. Accordingly, the Ninth Circuit concluded that 

the defendant in Rodriguez-Arroyo was deprived of due process. Thus, based on the guidance in 

Rodriguez-Arroyo, the Court concludes that in the instant case, the IJ’s group advisement that 

explained voluntary departure and advised the group that the IJ would discuss the relevant factors 

when the IJ would speak with each alien individually, did not meaningfully advise Defendant of 

his right to seek relief. In sum, because the IJ in the instant case failed to adequately advise 

Defendant, Defendant “never had a genuine opportunity to apply for voluntary departure or to 

present evidence of the factors favoring this relief.” Melendez–Castro, 671 F.3d 950, 953–54.
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During Defendant’s individual hearing, the IJ in the instant case questioned both 

Government counsel and Defendant. See Transcript at 8–18. However, the focus of the discussion 

was on post-hearing voluntary departure. For instance, the IJ asked the government about the 

government’s position regarding voluntary departure. Id. at 13. Government counsel responded 

“opposed.” Id. The IJ next asked how long Defendant has lived in the United States, to which 

Defendant replied he had been in the United States for ten years and had never left the United 

States during that ten-year period. Id. at 13–14. The IJ discussed options of cancellation or 

expulsion. Id. at 14. The government pointed out Defendant was convicted in August of 2012 of 

transport of a controlled substance in violation of California Health and Safety Code 11379. Id. 

The IJ then stated: “Now, as I said, I don’t know if you are eligible for the benefit or not but I 

could give you [a] pre-application to review and I can postpone your case if that’s what you want.” 

Id. at 14–15. The IJ then again asked the government about the government’s position regarding 

voluntary departure on discretion. Id. at 15. Government counsel responded “opposed.” Id. The IJ 

then advised Defendant that he “appear[ed] to be eligible for flight of voluntary departure.” Id. at 

15. The IJ continued, “[i]f you’re granted voluntary departure, it may make it easier for you to 

return legally to this country. Let’s say your children petition for you to receive an immigration 

benefit or you marry the mother of the children, or something along those lines.” Id. “But the 

earliest available date that I can give a voluntary departure hearing is October 23[,] [2012].” Id. 

Defendant asked about the voluntary departure option, and the IJ clarified that the hearing would 

be on October 23, 2012, and that voluntary departure is not guaranteed because it would require 

the presentation of evidence and the weighing of negative and positive factors, so the IJ could not 

state the outcome until that time. Id. at 16. Defendant replied “[n]o, I don’t want to fight anything, 

I want to leave today.” Id. the IJ stated: “Then the record shall reflect that the respondent was 

offered . . . a hearing for voluntary departure. Respondent declined . . . the hearing and has opted 

for an order of removal today to the state of Mexico.” Id. at 17. 

The IJ’s above-described individual advisement to Defendant failed to meaningfully advise 

Defendant of his right to seek pre-hearing voluntary departure. In particular, the IJ focused on 
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post-hearing voluntary departure when the IJ spoke individually with Defendant and Government 

counsel, and the IJ gave Defendant no explanation or information on the procedure or 

requirements for pre-hearing voluntary departure. Nor did the IJ ever clarify the differences 

between pre-hearing and post-hearing voluntary departure relief. See Zamudio-Pena v. Holder, 

333 F. App’x 165, 168 (9th Cir. 2009) (“The IJ’s failure to properly advise Zamudio–Pena of his 

apparent eligibility for pre-hearing voluntary departure and of the differences between pre-hearing 

and post-hearing voluntary departure violated his right to procedural due process.”). Specifically, 

the IJ never explained to Defendant that he was eligible for pre-hearing voluntary departure the 

same day as his removal proceeding and did not need to wait for a further hearing to be granted 

that relief. See, e.g., Rodriguez-Arroyo, 467 F. App’x at 747 (“[Defendant] did not say that he was 

not willing to depart voluntarily immediately, nor is there any reason to think that he would not 

have done so had the IJ explained the voluntary removal process to him.”). Accordingly, the IJ’s 

individual advisement to Defendant failed to meaningfully advise Defendant of his right to seek 

pre-hearing voluntary departure.

Accordingly, because Defendant was not meaningfully advised of his right to pre-hearing 

voluntary departure and because Defendant was not able to present factors favoring this relief, 

Defendant has demonstrated that his due process rights were violated. See, e.g. Ortiz-Lopez, 385 

F.3d at 1204 (failure to advise of pre-hearing voluntary departure is due process violation).

2. Prejudice

A petitioner must show prejudice resulting from the due process violation in order to 

succeed on a motion to dismiss an indictment under 8 U.S.C. § 1326(d). United States v. Muro–

Inclan, 249 F.3d 1180, 1184 (9th Cir. 2001). In order to establish prejudice, an alien does not have

to show that he would actually have been granted relief. Arrieta, 224 F.3d at 1079. “Instead, he 

must only show that he had a ‘plausible’ ground for relief from deportation.” Id. To show 

plausible grounds for relief, a defendant need only establish “some evidentiary basis on which 

relief could have been granted.” United States v. Raya-Vaca, 771 F.3d 1195, 1207 (9th Cir. 2014) 

(citing United States v. Reyes-Bonilla, 671 F.3d 1038, 1050 (9th Cir. 1049–50).
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Pre-hearing voluntary departure is available “at the alien’s own expense,” prior to the 

completion of a removal proceeding so long as: (1) the alien is not deportable for an aggravated 

felony; (2) the alien has not engaged in terrorist activities; and (3) the “alien was [not] previously 

permitted to so depart after having been found inadmissible.” 8 U.S.C. §§ 1229c(a)(1), 

1227(a)(2)(A)(iii), 1227(a)(4)(B).

As an initial matter, the government’s reply focuses on the fact that Defendant would not 

have qualified for post-hearing voluntary departure. See Opp’n at 23. However, Defendant’s 

challenge focuses on the availability of pre-hearing voluntary departure. The requirements for 

obtaining pre-hearing and post-hearing voluntary departure are different. See In Re ArguellesCampos, 22 I. & N. Dec. 811, 817 (BIA 1999) (explaining that pre-hearing voluntary departure 

“requires much less from the alien”; for example, “an alien need not show that he has good moral 

character or that he has the financial means to depart the United States.”). Thus, the government’s

arguments regarding post-hearing voluntary departure are not applicable to the question of

whether or not Defendant has demonstrated prejudice with regards to pre-hearing voluntary 

departure.

Moreover, Defendant has shown that he had a plausible ground for pre-hearing voluntary 

departure relief from removal. None of the statutory bars would have prevented Defendant from 

obtaining pre-hearing voluntary departure relief. First, there is no evidence in the record that 

Defendant engaged in terrorist activities or that Defendant had been previously permitted to depart 

after having been found admissible. See 8 U.S.C. §§ 1229c(a)(1), 1227(a)(2)(A)(iii), 

1227(a)(4)(B). Second, Defendant’s August 2012 conviction for transport of a controlled 

substance in violation of California Health and Safety Code § 11379 does not constitute an 

aggravated felony for which Defendant is deportable. Although the government argues otherwise, 

see Opp’n at 23, the government does not support its contention with authority demonstrating that 

Defendant was convicted of an aggravated felony. Moreover, the case law cited by Defendant 

demonstrates that Defendant’s August 2012 conviction for transport of a controlled substance in 

violation of California Health and Safety Code § 11379 does not constitute an aggravated felony
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for which Defendant is deportable. See, e.g., Sandoval-Lua v. Gonzales, 499 F.3d 1121 (9th Cir. 

2007) (finding petitioner’s California Health and Safety Code § 11379(a) conviction to not be an 

aggravated felony), overruled on other grounds by Young v. Holder, 697 F.3d 976 (9th Cir. 2012); 

Hernandez-Aguilar v. Holder, 594 F.3d 1069, 1072 (9th Cir. 2010) (noting that the IJ granted the 

petitioner, who had a California Health and Safety Code § 11379 conviction, voluntary departure); 

see also, e.g., Lorenzo v. Whitaker, 752 F. App’x 482 (9th Cir. 2019) (finding the 

methamphetamine element in California Health and Safety Code §§ 11378 and 11379(a) 

overbroad and not divisible, and therefore that a California Health and Safety Code § 11378 or § 

11379(a) conviction cannot constitute grounds for removal); Ortiz-Holder, 385 F.3d at 1205 

(finding that possession of a controlled substance such as cocaine, in violation of California Health 

& Safety Code § 11350(a), was not an aggravated felony). Finally, the Court notes that despite the 

government’s arguments to the contrary, Opp’n at 23, Defendant’s Notice to Appear said nothing 

about Defendant’s removal being based upon any prior conviction at all, let alone an aggravated 

felony conviction. See Notice to Appear.

Moreover, Defendant has identified factors that would have weighed in favor of granting 

pre-hearing voluntary departure relief. See In re Thomas, 21 I. & N. Dec. 20, 23 (BIA 1995) 

(explaining that IJs may also consider “countervailing equities such as long residence here, close 

family ties in the United States, or humanitarian needs.”). For instance, Defendant has two 

children, aged three years and one and a half years, who are United States citizens. Transcript at 

12–13. The mother of Defendant’s children is also a United States citizen. Se id. Defendant had 

lived in the United States for ten years. Id.; see also Pineda-Rodriguez Decl. ¶ 8. Defendant also 

had eleven siblings that lived in the United States. Pineda-Rodriguez Decl. ¶ 8. Additionally,

Defendant had worked at Puebla Market in Monterey County, California for six years and had

been paying taxes. Id. ¶ 9. These factors present significant humanitarian and public interest 

considerations that would counsel in favor of relief. See, e.g., Raya-Vaca, 771 F.3d at 1207

(finding that “there is a ‘compelling humanitarian interest in keeping families united,’” and that

the humanitarian and public interest factors weighed in favor of granting defendant relief when his 
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partner, their children, and his mother, siblings and much of his extended family lived in the 

United States). 

Moreover, the record reflects that Defendant would have likely sought to voluntarily depart 

immediately had the IJ explained the voluntary removal process to him. See id. at ¶ 4; Transcript 

at 16; see, e.g., Rodriguez-Arroyo, 467 F. App’x at 747 (“[Defendant] did not say that he was not 

willing to depart voluntarily immediately, nor is there any reason to think that he would not have 

done so had the IJ explained the voluntary removal process to him.”). Finally, Defendant and his 

family would have been able to pay for his flight to Mexico if he had been granted pre-hearing 

voluntary departure. Pineda-Rodriguez Decl. ¶ 14.

The government argues that Defendant’s other criminal history, including, at the very least,

one DUI conviction,

3 would constitute negative factors weighing against relief. Supp. Opp’n at 2.

However, the Ninth Circuit has recognized that the positive factors that Defendant has 

demonstrated, such as long residence, close family ties in the United States, or humanitarian 

needs, weigh in favor of pre-hearing voluntary departure relief, even where the defendant had a

similar criminal history to the instant Defendant. See, e.g., Vassallo-Martinez, 360 F. App’x 742

(9th Cir. 2009) (collecting cases where the Board of Immigration Appeals has affirmed the grant

of voluntary departure relief or remanded for the IJ to consider voluntary departure relief to aliens 

with criminal histories, including in cases where the alien’s criminal history included “six criminal 

convictions including battery, drunkenness, and driving under the influence”; cases concerning 

aliens with criminal histories of assault; cases concerning aliens with criminal histories of driving 

under the influence; and cases concerning aliens with criminal histories of possession of a 

 

3 The parties provide no attachments substantiating the Defendant’s other prior convictions

besides the California Health and Safety Code § 11379 conviction. In the government’s 

supplemental opposition, the government asserts that Defendant’s criminal history also “involves 

several prior DUIs.” Supp. Opp’n at 2. In the Defendant’s Reply, Defendant asserts that that he 

“had a 2009 misdemeanor DUI conviction for which he was sentenced to probation and five days 

custody” and “a 2011 conviction for driving on a suspended license due to a DUI for which he 

was sentenced to probation and ten days custody.” Reply. at 6 n.7. Neither party asserts that any of 

these other prior convictions constitutes an aggravated felony. Instead, the parties only focus on

these convictions for the weighing of negative and positive factors in the prejudice analysis. See 

Supp. Opp’n at 2; Reply. at 6 n.7.
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controlled substance). By contrast, in the case cited by the government, United States v. RamirezGonzalez, No. 5:14-cr-00-407-BLF-1, 2016 WL 3670045, at *2 (N.D. Cal. Jul. 11, 2016), the 

equities were much less favorable and the criminal history included assault with a caustic 

chemical. Specifically, the defendant in Ramirez-Gonzalez had thrown hydrochloric acid on his 

girlfriend, who was trying to leave him, and her sister. See id. Thus, the Court is not persuaded 

that Ramirez-Gonzalez directs this Court to find that Defendant’s criminal history would preclude 

relief.

In sum, the Court finds that Defendant has established “some evidentiary basis on which 

relief could have been granted.” Raya-Vaca, 771 F.3d at 1207. Accordingly, the Defendant has 

satisfied the prejudice prong.

3. Exhaustion and Judicial Review

Finally, the Ninth Circuit has found a defendant exempted from the exhaustion and judicial 

review requirements in § 1326(d) when the “IJ did not inform him that he was eligible for relief 

from [removal].” Ortiz-Lopez, 385 F.3d at 1204 n.2 (citing United States v. Ubaldo-Figueroa, 364 

F.3d 1042, 1049 (9th Cir. 2004)). In Ortiz-Lopez, for instance, the Ninth Circuit explained that 

Defendant was exempt from the exhaustion and judicial review requirements when the IJ failed to 

meaningfully advise Defendant of his right to seek pre-hearing voluntary departure. Id. at 1204. 

Specifically, the Ninth Circuit in Ortiz-Lopez explained that “[w]aiver of appeal must be 

considered and intelligent, and ‘[w]e do not consider an alien’s waiver of his right to appeal his 

deportation order to be considered and intelligent when the record contains an inference that the 

petitioner is eligible for relief from deportation, but the [IJ] fails to advise the alien of this 

possibility and give him the opportunity to develop the issue.’ Id. at 1204 n.2 (citing UbaldoFigueroa, 364 F.3d at 1049). In that case, the Ninth Circuit further explained that “Ortiz-Lopez 

would have been deprived of the right to judicial review, because ‘an alien who is not made aware 

that he has a right to seek relief necessarily has no meaningful opportunity to appeal the fact that 

he was not advised of that right.’” Id. (citing Arrieta, 224 F.3d at 1079 (finding a deprivation of 

judicial review where an alien was not informed of the right to seek relief from deportation)).
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In the instant case, because the IJ failed to meaningful advise Defendant of his right to prehearing voluntary departure relief, Defendant’s appeal waiver was similarly not considered and 

intelligent, and therefore, is excused. See, e.g., Rodriguez-Arroyo, 467 F. App’x at 747 (finding in 

case where Defendant was not meaningfully advised of right to seek pre-hearing voluntary 

departure and never had opportunity to apply for voluntary departure or to present evidence of the 

factors favoring that relief, that defendant “was deprived of due process during the 2005 

deportation hearing and his waiver of his right to appeal was not ‘considered and intelligent’”); 

Lopez-Menera, 542 F. Supp. 2d at 1027–28 (A waiver is not “considered and intelligent” when 

“‘the record contains an inference that the petitioner is eligible for relief from deportation,’” but 

the IJ fails to “‘advise the alien of this possibility and give him the opportunity to develop the 

issue.’”); Basulto-Pulido, 219 F. App'x at 719 (same). Moreover, the fact that Defendant signed 

the Form I-826 does not change this conclusion because there is no evidence in the record that 

Defendant’s signing of the Form I-826 was knowing and intelligent or that the officer informed 

Defendant of the contents of the form. See, e.g., Nungaray-Rubalcaba, 229 F. App’x at 438 

(“Nungaray–Rubalcaba was improperly deprived of judicial review and denied due process in the 

underlying deportation proceeding, because his waiver of a hearing through a written stipulation 

for removal was not considered and intelligent. When he signed the waiver, the INS Special Agent 

‘failed to inform him that he was eligible for a fast-track voluntary departure in lieu of removal, 

under 8 U.S.C. § 1229c(a).’” (citations omitted)); Muro–Inclan, 249 F.3d at 1182 (holding that a 

waiver of appeal is invalid if the immigrant is not advised of possible eligibility for relief from 

deportation).

Accordingly, because the IJ’s failure to inform Defendant of his eligibility for pre-hearing 

voluntary departure violated Defendant’s due process rights, and because this violation caused 

Defendant prejudice, the underlying order of removal cannot be used as an element of Defendant’s 

conviction under § 1326. Therefore, the Court GRANTS Defendant’s motion to dismiss the 

indictment on this ground.

IV. CONCLUSION
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For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss the 

indictment with prejudice. 

IT IS SO ORDERED.

Dated: March 26, 2019

______________________________________

LUCY H. KOH

United States District Judge