Opinion
CR-21-02221-001-TUC-RCC (DTF)
04-15-2022
United States of America, Plaintiff, v. Juan Vasquez-Lopez, Defendant.
REPORT AND RECOMMENDATION
HONORABLE D THOMAS FERRARO, UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant Juan Vasquez-Lopez's Motion to Dismiss Indictment Pursuant to 1326(d). (Doc. 18.) Defendant seeks dismissal of the Indictment based on due process violations during his previous removal proceeding. (Doc. 18.) This motion is fully briefed. (Docs. 24, 27.) The Court denies Defendant's request for oral argument (Doc. 18) because this case is appropriate to decide without oral argument. Both parties have offered exhibits into evidence, and neither party has objected to the documents' accuracy or veracity. (Docs. 18-1, 18-2, 18-3, 18-4, 19, 24, 24-1, 27.) Neither party has requested an evidentiary hearing, and the Court will accept the offered exhibits. This case has been assigned to the undersigned for report and recommendation pursuant to LRCrim 5.1. (Doc. 6.) Magistrate Judge Ferraro recommends the District Court, after its independent review, deny Defendant's motion.
BACKGROUND
Defendant is Guatemalan, and his native language is Mam. (Doc. 18-1 at 2, Doc. 18-4 ¶ 11.) He entered the United States without inspection in November 2006 and stayed in Atlanta, Georgia, until February 2007 when immigration agents detained him. (Doc. 18-4 ¶ 2.) Defendant was 19 years old and had no criminal history. Id. ¶¶ 1, 12.
The Court notes that the dates listed in the declaration state that Defendant entered in November 2007 and was removed in February 2007. These dates are impossible. Defendant likely meant 2006.
In February 2007, Defendant was detained and participated in a removal proceeding, which was conducted in Spanish. (Doc. 18-1 at 1.) He received the Notice to Appear in February but has no memory of receiving it. Id.; Doc. 18-4 ¶ 4. On February 22, 2007, Defendant received "Notice of Rights," "Request for Resolution," and "Statement of Rights" forms. (Doc. 24-1 at 12-15.) The deportation officer confirmed Defendant understood him and then read the forms to Defendant. Id. at 12-15, 18-19. Defendant indicated he wanted a hearing before the Immigration Court to determine whether he could remain in the United States. Id. at 12, 14. The form also had a preprinted mark waiving the hearing. Id.
On February 27, 2007, Defendant appeared before a deportation officer with other detainees. (Doc. 18-4 ¶ 5.) The deportation officer spoke with the group. Id. Defendant asserts the other detainees, some of whom spoke Mam, explained what the officer said. Id.; Doc. 27 at 4. According to Defendant, it was his understanding that the deportation officer told the group that each detainee had two choices: accept the preprinted form and be removed the same day, or appear before an immigration judge (IJ), which could take months. (Doc. 18-4 ¶ 6.) The deportation officer then met with Defendant individually. Id. ¶ 7. Defendant received a form labeled "Statements Made for the Issuance of Final Removal Order." (Doc. 18-1 at 1.) This form presents Defendant with information regarding his rights and waivers. Id. This information included the right to be represented by an attorney at no expense to the government, that Defendant had a list of attorneys who charged no fees, the right for hearing before an IJ, the right to an appeal and that Defendant was waving his rights. Id. The deportation officer did not read Defendant the form; he asked which option Defendant picked. (Doc. 18-4 ¶ 9.) Additionally, no one explained that Defendant may be eligible for voluntary departure or the implications of voluntary departure. Id. ¶ 13.
On March 15, 2007, IJ William Cassidy signed the "Decision and Order of the Immigration Judge." (Doc. 19-1.) The IJ stated Defendant submitted a stipulation, which conceded his removability and waived his rights. Id. at 1. The IJ found Defendant's waiver was voluntary, knowing, and intelligent. Id. The IJ then ordered Defendant removed to Guatemala. Id. at 2. Homeland Security signed and returned a Warrant of Removal/Deportation against Defendant on March 26, 2007. (Doc. 18-3.)
In 2019, Defendant was arrested for re-entry of removed alien. (Doc. 24-1 at 25.) These hearings were conducted in Spanish. Id. He was convicted and was later convicted of a probation violation. United States v. Vasquez-Lopez, No. 5:20-cr-00514-1, Minute Entry (S.D. Tex Aug. 25, 2020). The government reinstated the 2007 removal order and removed Defendant from the United States on October 12, 2020. (Doc. 10 at 1; Doc. 24-1 at 4.)
In June 2021, a group of individuals wearing camouflage waived down a Border Patrol agent in Arizona. (Doc. 24-1 at 2.) Defendant was a part of this group. Id. Defendant is now charged with illegal reentry into the United States, in violation of 8 U.S.C. § 1326(a) enhanced by § 1326(b)(1). (Doc. 10.)
DEFENDANT'S MOTION TO DISMISS
Defendant alleges the stipulated removal order was entered contrary to his due process rights. (Doc. 18 at 4.) First, Defendant's waiver was invalid and denied him his right to appeal the removal order. Id. at 4-6. None of the proceeding was held in Defendant's native language, Mam. Id. at 6. No one informed Defendant that he was eligible for voluntary departure. Id.
Second, the IJ violated 8 C.F.R. § 1003.25(b) because there as an insufficient factual basis to find that Defendant's waiver was voluntary, knowing, and intelligent. Id. at 6-7. Finally, Defendant argues that the errors were prejudicial because he was eligible for voluntary departure. Id. at 7-8.
DISCUSSION
Standard
A defendant charged with illegal reentry has a due process right to collaterally attack the validity of his underlying deportation order because it serves as a predicate element for the conviction. See United States v. Ochoa, 861 F.3d 1010, 1014 (9th Cir. 2017). As the parties have correctly noted, Defendant's previous conviction does not prevent his challenge to the 2007 deportation. See United States v. Smith-Baltiher, 424 F.3d 913, 920 (9th Cir. 2005).
A defendant collaterally attacking a removal order under § 1326(d) must show that: (1) he exhausted his administrative remedies; (2) the deportation proceedings improperly denied him judicial review; and (3) the entry of the removal order was fundamentally unfair. The third prong, fundamental fairness, has two components: a defendant must show (1) a violation of his due process rights from defects in the deportation proceeding and (2) actual prejudice. United States v. Vega-Ortiz, 822 F.3d 1031 (9th Cir. 2016) (citation omitted.). The first two elements must be met before a court can consider the third element, and all three elements are necessary to grant the motion to dismiss. See United States v. Gonzalez-Villalobos, 724 F.3d 1125, 1132 (9th Cir. 2013).
"[A]n alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order." United States v. De La Mora-Cobian, 18 F.4th 1141, 1147 (9th Cir. 2021) (alteration in De La Mora-Cobian) (quoting United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000)). However, an invalid waiver in violation of defendant's due process rights may satisfy § 1326(d)(1) and (2). See United States v. Mangas, No. 19-50319, 2022 WL 898594, at *1 (9th Cir. Mar. 28, 2022) (finding defendant met first two requirements by showing invalid waiver). But see United States v. Palomar-Santiago, 141 S.Ct. 1615, 1619, 1622 & n.4 (2021) (holding all the prongs of § 1326(d) were statutorily mandatory, explaining history of § 1326(d), and rejecting Palomar-Santiago's freestanding constitutional claims because they were not raised below). Waiver
The Ninth Circuit did not cite to United States v. Palomar-Santiago, 141 S.Ct. 1615, 1619, (2021) in Mangas. However, it did raise the issue at oral argument. Video of Oral Argument at 2:46-4:10, Mangas, No. 19-50319 (Feb. 7, 2022) https://www.ca9.uscourts.gov/media/video/?20220207/19-50319/.
The Government insists Defendant's previous waiver was valid, considered, and intelligent. (Doc. 24 at 5.) The Court disagrees.
A valid waiver must be considered and intelligent. De La Mora-Cobian, 18 F.4th at 1148. The government bears the burden of proving with clear and convincing evidence that a defendant received "adequate advisement of the consequences of his waiver of appeal" and that the defendant validly waived his right to appeal. Id. (quoting United States v. Ramos, 623 F.3d 672, 681 (9th Cir. 2010)). Courts consider all the surrounding circumstances when evaluating validity of a waiver-not just immigration documents. Id. Courts should "indulge every reasonable presumption against waiver." Ramos, 623 F.3d at 680 (quoting United States v. Lopez-Vasquez, 1 F.3d 751, 753 (9th Cir. 1993)). Per regulations, IJs "must determine that the alien's waiver is voluntary, knowing, and intelligent." 8 C.F.R. § 1003.25(b).
Here, the deportation officer spoke with a group of detainees, which included Defendant. He told them that they could waive the hearing before an IJ or have a hearing before the IJ. He then met with Defendant individually and asked him to pick. Defendant indicated two choices on the Request for Resolution form. No one explained to Defendant that he may be eligible for voluntary departure. The IJ accepted Defendant's waiver and ordered him departed.
Defendant asserts the waiver was invalid for two reasons: the information was in Spanish-not Mam-and no one informed Defendant that he was eligible for voluntary departure. (Doc. 18 at 5-6.) It is unnecessary to further inquire into whether Defendant understood the deportation officer because the other argument is dispositive. The waiver was invalid because Defendant was not informed that he was eligible for voluntary departure relief.
The Government relies on United States v. Sanchez-Aguilar, 719 F.3d 1108, 1111-12 (9th Cir. 2013), to argue the waiver was valid even though Defendant was never informed of the discretionary relief. (Doc. 24 at 6.) In Sanchez-Aguilar, a previously removed person sought entry at the border. 719 F.3d at 1111. He was then subject to an "expedited removal proceeding authorized under 8 U.S.C. § 1225(b)(1)" (Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled), which is specifically reserved for "arriving aliens." Id. at 1112. "The distinction between an alien who has effected an entry into the United States and one who has never entered runs throughout immigration law." Zadvydas v. Davis, 533 U.S. 678, 963 (2001) (citations omitted). This is a distinction the Sanchez-Aguilar court recognized and relied on. 719 F.3d at 1112 ("In the context of removal proceedings for aliens who have already been admitted into the United States, we have held that due process requires the immigration judge to inform such aliens of potentially available avenues of relief."). The Court finds Ramos to be more persuasive because it involved an alien already in the country-not an "arriving alien."
In Ramos, the uncounseled Spanish-speaking alien detainee's waiver was found to be invalid for several independent reasons. 623 F.3d at 680. Ramos had entered the country approximately twenty years before his removal proceeding. Id. at 675. A deportation officer gave Ramos a "Stipulated Request for Removal Order and Waiver of Hearing" form, which listed several stipulations and rights in English and Spanish. Id. at 677. Then without a hearing, an IJ accepted the stipulation, finding the waiver to be voluntary, knowing, and intelligent, and ordered Ramos removed. Id. at 679. The Ninth Circuit found the waiver was invalid for several independent reasons, was procedurally defective, and deprived Ramos of the opportunity for meaningful judicial review. Id. at 680, 682. The Ninth Circuit explained that Ramos never "receive the benefit of a review of his potential eligibility for relief" and "never had the benefit of appearing before an IJ." Id. at 681-82.
In 2007, Defendant was not an "arriving alien" but instead had entered the United States and was, thus, more in line with the defendant in Ramos. Compare Ramos, 623 F.3d at 675-79 with Sanchez-Aguilar, 719 F.3d at 1111-12. Like Ramos, Defendant did not appear before an IJ during the removal hearing and was never informed he was eligible for voluntary departure. Thus, the Court recommends finding that Defendant's waiver was invalid and that the IJ violated § 1003.25(b) because there were insufficient facts to find the waiver was voluntary, knowing, and intelligent. Moreover as Defendant points out in the reply (Doc. 27 at 3-4), the "Request for Resolution" form is ambiguous at best because two separate options are indicated, one requesting a hearing for the Immigration Court and one waiving the hearing. (Doc. 24-1 at 12, 14.)
Because Defendant's waiver was invalid, he has satisfied § 1326(d)(1) and (2). See Mangas, 2022 WL 898594, at *1. But see Palomar-Santiago, 141 S.Ct. at 1619, 1622 & n.4. Therefore, the Court will consider if Defendant was prejudiced by this error.
Prejudice
To receive relief under § 1326(d) and show the removal order was "fundamentally unfair," defendants must show they "suffered prejudice" because of the defects in the removal proceeding. United States v. Valdez-Novoa, 780 F.3d 906, 914 (9th Cir. 2015) (quoting United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004)). Proving prejudice requires that a defendant "shows that it is plausible, rather than merely conceivable or possible, that an IJ would have granted the relief for which he was apparently eligible." Valdez-Novoa, 780 F.3d at 914. This requires more than an assertion that the "IJ could have granted the relief at issue without abusing his discretion." Id. A defendant's inability to prove prejudice is fatal to a claim under § 1326(d). See United States v. Barajas-Alvarado, 655 F.3d 1077, 1091 (9th Cir. 2011) (affirming denial of § 1326(d) motion where defendant "failed to establish that it was plausible [immigration] relief would be granted, and therefore failed to establish any prejudice from the alleged procedural violations"). The Defendant must bear this burden. See Valdez-Novoa, 780 F.3d at 916-17 (rejecting a burden-shifting scheme).
First, we identify the factors relevant to the IJ's exercise of the discretion for the relief being sought. Next, we determine whether, "in light of the factors relevant to the form of relief being sought, and based on the unique circumstances of the alien's own case, it was plausible (not merely conceivable) that the IJ would have exercised his discretion in the alien's favor."United States v. Rojas-Pedroza, 716 F.3d 1253, 1263 (9th Cir. 2013) (quoting and citing Barajas-Alvarado, 655 F.3d at 1089-90). Courts may consider whether respondents in similar circumstances have received relief. See id. "Positive factors include 'long residence, close family ties to the United States, and humanitarian needs.'" United States v. Gonzalez-Flores, 804 F.3d 920, 927 (9th Cir. 2015) (quoting Rojas-Pedroza, 716 F.3d at 1265). "Negative factors include 'the nature and underlying circumstances of the deportation ground at issue; additional violations of the immigration laws; the existence, seriousness, and recency of any criminal record; and any other evidence of bad character or the undesirability of the applicant as a permanent resident.'" Id. (quoting Rojas-Pedroza, 716 F.3d at 1265).
Here, both parties agree Defendant was eligible for voluntary departure relief. (Doc. 18 at 7; Doc. 24 at 7.) However, Defendant offers, and the Court finds, no positive factors to indicate that an IJ would exercise their discretion to grant such relief. Defendant had only been in the United States for a very short period, had no ties to the United States, and mentions no humanitarian need to stay in the United States. (Docs. 18, 27.) He merely proffers his lack of criminal convictions to show why the IJ would plausibly have granted voluntary departure relief, which he asserts is sufficient. (Doc. 27 at 6-9.) This is not nearly as impressive as Defendant claims because the evidence suggests he was in the United States for a mere four months before he was detained. Doc. 18-4 ¶ 2; See United States v. Rojas-Bueno, No. 3:19-cr-00029-MMD-WGC, 2020 WL 1470904, at *5 (D. Nev. Mar. 26, 2020) (discounting positive impact of single conviction in defendant that was in United States for mere months).
Defendant cites several cases to support his argument that are inapposite. (Doc. 27 at 6-9) (citing United States v. Ortega, 751 Fed.Appx. 985, 987 (9th Cir. 2018); United States v. Alcarzar-Bustos, 382 Fed.Appx. 568, 569 (9th Cir. 2010); United States v. Vasallo-Martinez, 360 Fed.Appx. 731, 732 (9th Cir. 2009); Matter of J-G-D-F-, 27 I. & N. Dec. 82, 85-86 (BIA 2017); In re Pineda-Castellanos, No. A77-212-443, 2005 WL 3833024, at *1 (BIA Nov. 16, 2005).) These cases involve defendants with positive equities that create a connection with the United States or where the voluntary departure was not challenged. See Ortega, 751 Fed.Appx. at 986-87 (finding prejudice when defendant had lived in United States for twenty-two years, had wife and two citizen children); Alcarzar-Bustos, 382 Fed.Appx. at 569-71 (finding prejudice when defendant lived in United States since he was newborn, had citizen child, and was married to United States citizen); Vasallo-Martinez, 360 Fed.Appx. at 733 (finding prejudice when defendant "entered the United States as a young child, and lived in the United States for at least 21 years before his deportation," graduated high school and earned Associate's Degree, was married to United States citizen, and had citizen child); Matter of J-G-D-F-, 27 I. & N. Dec. at 82, 90 (dismissing appeal where voluntary departure was not challenged and alien was convicted for a crime involving moral turpitude four and seven years prior to grant of relief); In re Pineda-Castellanos, 2005 WL 3833024, at *1 (voluntary departure granted when alien had three citizen children). These cases are not analogous to the case at hand and shall not be considered further.
Therefore, the Court finds Defendant has failed to carry his burden to demonstrate that voluntary departure relief would have been plausibly granted. Thus, the District Court should deny the motion to dismiss.
RECOMMENDATION
Accordingly, this Court recommends, after its independent review of the record, the District Court deny Defendant's motion (Doc. 18) because Defendant has not shown prejudice. Pursuant to Federal Rule of Criminal Procedure 59(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived.