Opinion
2:21-cr-00396-FLA
02-14-2022
UNITED STATES OF AMERICA, Plaintiff, v. HUGO PULIDO-AVINA, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS STATEMENT [DKT. 77]
FERNANDO L. AENLLE-ROCHA UNITED STATES DISTRICT JUDGE
RULING
Defendant Hugo Pulido-Avina (“defendant” or “Pulido-Avina”) is indicted on a single count of being an alien found in the United States following removal, in violation of 8 U.S.C. §§ 1326(a), (b)(2). Dkt. 16. Trial will begin on February 22, 2022. Dkt 107.
On December 17, 2021, defendant filed the instant Motion to Suppress defendant's statement dated February 18, 2017 (“Motion”). Dkt. 77 (“Mot.”). The United States of America (“the government”) opposes the Motion. Dkt. 86 (“Opp.”). The court granted defendant's request for and held an evidentiary hearing on this matter on February 11, 2022. Dkt. 99. For the reasons stated herein, the court DENIES defendant's Motion.
DISCUSSION
In the present Motion, defendant seeks to suppress statements recorded on a Form I-213 Record of Deportable Alien (the “I-213 Form”) and a Form I-877 Record of Sworn Statement in Administrative Proceedings (the “I-877 Form”) on the ground that defendant's statements were obtained in violation of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) (“Miranda”). The forms memorialize defendant's interview with U.S. Immigration and Customs Enforcement (“ICE”) Deportation Officer Darius Peele (“Officer Peele”) dated February 18, 2017, after defendant came to the attention of ICE while incarcerated at the Los Angeles County Jail. See Dkt. 77-1, 77-2.
The government notes Officer Peele is no longer an ICE officer. Opp. 2.
According to the government, before an individual is deported, immigration officials complete an I-213 Form to determine the individual's eligibility for deportation, and an I-877 Form to take sworn testimony regarding the person's deportation history. Opp. 3. Neither the I-213 or I-877 Form contains a Miranda warning. See Dkt. 77-1, 77-2. The forms here note defendant stated he was a citizen and national of Mexico with no claims to United States citizenship, was last deported on August 22, 2015 and re-entered the United States two days later, and lacked permission to re-enter the country. Id. The I-213 Form states defendant was “being processed for a Reinstatement of Prior Deportation Order (I-871) under Section 241 of the INA, ” but also notes defendant was “eligible for Title 8 USC 1326 Sentence.” Dkt. 77-1 at 4. The I-213 Form also explains that defendant was to remain in ICE custody pending referral to an Asylum Officer due to his claim of fear of returning to Mexico. Id. at 4-5.
Defendant ultimately was deported on or about March 31, 2017, approximately one month after his interview with Officer Peele, without facing prosecution for his 2015 illegal reentry. See Dkt. 16; Opp. 6. The indictment in this case was filed on August 24, 2021. Id. (charging defendant with illegal reentry under 8 U.S.C. §§ 1326(a), (b)(2)). It alleges defendant was found in the country on February 2, 2020, having been deported on or about August 20, 2015 and March 31, 2017. Id.
I. Legal Standard
The Supreme Court in Miranda “require[d] the police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before the start of custodial interrogation.” United States v. Loucious, 847 F.3d 1146, 1149 (9th Cir. 2017). Questions are considered “interrogation” for purposes of Miranda if they are “reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980).
The parties do not dispute defendant was in “custody” for purposes of Miranda at the time of Officer Peele's interview.
The Ninth Circuit has held that an I-213 interview is not an “interrogation” when conducted for the administrative purpose of determining whether the individual is deportable, and the interviewer has no reason to believe the statements would be incriminating. See United States v. Salgado, 292 F.3d 1169, 1173 (9th Cir. 2002) (noting the interview “did not take place during the ‘investigation' stage of the crime for which [the defendant] is convicted in this case. He was suspected at the time of the interview only of having committed state misdemeanors that had nothing to do with his immigration status. He was deported-not prosecuted.”); see also United States v. Lopez-Villegas, 413 Fed.Appx. 992, 993 (9th Cir. 2011) (affirming district court's holding that an individual's “statements admitting alienage were not likely to elicit an incriminating response” because they occurred during a “routine administrative interview conducted to determine whether any legitimate claim for relief from removal existed, ” and therefore, did not require a Miranda advisal). On the other hand, if officials question a person in connection with an ongoing prosecution for violating immigration laws or the person is subject to an especially heightened risk of prosecution, statements are properly suppressed in the absence of a Miranda warning. See United States v. Chen, 439 F.3d 1037, 1041-42 (9th Cir. 2006).
II. Analysis
Here, defendant has failed to establish that the 2017 interview with Officer Peele was the result of a pending criminal investigation or that defendant was “subject to an especially heightened risk of prosecution.” Id. At the evidentiary hearing, Officer Peele testified credibly under oath that if an individual was going to be prosecuted for illegal reentry, his personal practice was to make a notation of this fact on the I-213 Form and complete a separate Miranda rights form. Although the I-213 Form here notes that defendant was “eligible” for prosecution under 8 U.S.C. § 1326, it also definitively states that defendant was being processed for removal pursuant to a prior deportation order. Dkt. 77-1 at 4. Officer Peele testified that at the time he interviewed defendant, ICE was not presenting his case for possible prosecution and that the United States Attorney's Office was not contemplating criminal charges. Indeed, defendant “was deported-not prosecuted” pursuant to the prior deportation order approximately one month after Officer Peele interviewed him. Salgado, 292 F.3d at 1173. The indictment in the instant case was not filed until August 2021, approximately 4.5 years after Officer Peele's completion of the I-213 and I-877 Forms in February 2017. Officer Peele could not have known in February 2017 that, following defendant's subsequent removal, he would again be found in the United States in February 2020 and face prosecution in 2021.
Thus, there is strong evidence that the February 2017 interview was merely administrative and conducted solely for the purpose of processing defendant's deportation, and that defendant was not subject to a heightened risk of prosecution at the time of the interview. Accordingly, defendant was not “interrogated” for purposes of potential criminal prosecution, and Miranda warnings were not required. See Salgado, 292 F.3d at 1172-73. The court DENIES defendant's Motion to Suppress the statements in the I-213 and I-877 Forms.
CONCLUSION
For the reasons stated above, the court DENIES defendant's Motion to Suppress Statement (Dkt. 77).
IT IS SO ORDERED.