Opinion
CR-22-00791-001-TUC-RM (DTF)
10-27-2022
United States of America, Plaintiff, v. Jorge Luis Carrillo-Moreno, Defendant.
REPORT AND RECOMMENDATION
D. THOMAS FERRARO, UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant Jorge Luis Carrillo-Moreno's Motion to Dismiss Indictment Pursuant to 8 U.S.C. § 1326(d). (Doc. 12.) Defendant seeks dismissal of the Indictment based on an alleged due process violation during his 2012 removal proceeding. Id. at 4. This motion is fully briefed. (Docs. 19, 22.) The Court held an oral argument on October 3, 2022, and invited the parties to file supplemental briefing. (Doc. 31.) Both parties filed their supplemental briefing. (Docs. 32, 33.) The parties have offered exhibits into evidence, and neither party has objected to the documents' accuracy or veracity. (Docs. 12-1, 12-2, 12-3, 12-4, 19, 32-1, 33.) The Court accepts and considers the offered exhibits. This case has been assigned to the undersigned for report and recommendation pursuant to LRCrim 5.1. (Doc. 6.) The undersigned recommends the District Court, after its independent review, deny Defendant's motion.
BACKGROUND
Defendant is a citizen of Mexico and has not requested legal permission to enter the United States. (Doc. 12 at 3; Doc. 12-3 at 3.) In 2012, Defendant entered the United States on foot through the southern border. (Doc. 12-3 at 3.) He was found over fifty miles from the international border. (Doc. 32 at 2.) In an expedited removal proceeding, United States Border Patrol Agent Joseph Callies determined Defendant was inadmissible pursuant to Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA). (Doc. 12-2 at 2.) On October 1, 2012, Defendant was removed to Mexico through Douglas, Arizona. (Doc. 12-4 at 2.) Between May 2015 and January 2021, Defendant was removed from the United States multiple times. (Doc. 19 at 2.)
Defendant previously claimed to have been found north of Sasabe, Arizona, much closer to the international border. (Doc. 12 at 3.)
On March 21, 2022, Border Patrol agents apprehended Defendant, along with a group of other individuals in Arizona close to the international border. (Doc. 12 at 3; Doc. 19 at 1.) Defendant admitted he had recently crossed the border illegally. (Doc. 12 at 3.) On April 20, 2022, the Grand Jury returned a one-count indictment alleging Defendant reentered the United States without permission in violation of 8 U.S.C. § 1326(a). (Doc. 8.) All removals after Defendant's 2012 removal are reinstatements of the 2012 order or are not at issue here.
DEFENDANT'S MOTION TO DISMISS
Defendant collaterally attacks his 2012 expedited removal order. (Doc. 12 at 4.) Very basically, Defendant alleges that he was not inadmissible under 8 U.S.C. § 1182(a)(7), as alleged in the expedited removal notice and order, because he did not apply for entry at the border or the allegations were not for "the time of application for admission." Id. at 8. Thus, he claims he was improperly removed through an expedited removal proceeding and thus his due process rights were violated. Id.
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 an element for the charged offense. See United States v. De La Mora-Cobian, 18 F.4th 1141, 1146 (9th Cir. 2021). A defendant collaterally attacking a removal order under § 1326(d) must show: (1) they exhausted their administrative remedies; (2) the removal proceedings improperly denied them judicial review; and (3) the entry of the removal order was fundamentally unfair. The third prong-fundamental fairness-has two components. United States v. Vega-Ortiz, 822 F.3d 1031, 1034 (9th Cir. 2016). A defendant must show (1) a violation of their due process rights from defects in the removal proceeding and (2) actual prejudice. Id. Administrative Remedies and Judicial Review
The Government recognizes that the expedited removal process "likely" did not provide any administrative remedies. (Doc. 19 at 5 n.4.) Thus, the Government concedes the first prong because the expedited removal proceeding provided no available administrative remedies.
Elsewhere in the pleading, the Government states Defendant failed to demonstrate he exhausted the administrative remedies. (Doc. 19 at 2.) This does not comport with the established law in this circuit or the concession in the response.
The Government contends Defendant failed to pursue judicial review following the 2012 removal order. Id. at 5. The Government argues that subsequent criminal or removal proceedings were sufficient to provide judicial review and that Defendant did not pursue these avenues. Id. However, the Government cites no authority for this proposition, see id., and the Court finds none. The statute requires that defendants show "the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review." § 1326(d)(2) (emphasis added). The criminal proceedings and the subsequent removal were not "the deportation proceedings" within a clear reading of the statute. In the past, the United States Court of Appeals for the Ninth Circuit has held that collateral estoppel of a previous conviction could not prevent collateral attack of a defendant's removal. See United States v. Barajas-Alvarado, 655 F.3d 1077, 1080 n.3, 1081 (9th Cir. 2011) (permitting collateral attack when defendant had previously been convicted of illegal reentry). Further, when an order is reinstated "the prior order of removal . . . is not subject to being reopened or reviewed." 8 U.S.C. § 1231(5). Thus, this matter could not have been presented during the reinstatement process. The Ninth Circuit has also held that expedited removal proceedings satisfy the first two prongs of § 1326(d), absent an asylum claim. See De La Mora-Cobian, 18 F.4th at 1146-47; Barajas-Alvarado, 655 F.3d at 1082.
The Government raises the idea that Defendant could have raised this issue in a habeas corpus petition. (Doc. 19 at 5.) Judicial review of expedited removal orders is severely limited. 8 U.S.C. § 1252; see Guerrier v. Garland, 18 F.4th 304, 308 (9th Cir. 2021). Habeas corpus proceedings are limited to the following issues: "whether the petitioner is an alien," "whether the petitioner was ordered removed under such section," and "whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee . . ., or has been granted asylum." § 1252(e)(2). Because Defendant would not be challenging these limited areas, habeas corpus would not have been an appropriate avenue for judicial review.
At oral argument, the Government asserts that because Defendant was in the United States for a year prior to the latest reinstatement, he could have challenged the 2012 removal. The Government did not provide any mechanism other than Defendant's presence in the United States. As discussed above, habeas would not have provided a venue, and neither would the reinstatement proceedings. The Court finds the Government's argument unavailing.
Defendant has carried his burden that there were no administrative remedies and that he was deprived of judicial review in the expedited removal proceeding. Thus, the Court must continue to the third prong.
Fundamental Unfairness
Defendant argues he should not have been placed in an expedited removal proceeding in 2012 because there was no application for admission as required by § 1182(a)(7). (Doc. 12 at 8.) The Government counters that there was no due process violation. Some background explanation regarding removal proceedings is essential to understand Defendant's argument.
Immigration officers shall order a subsect of applicants of admission that are inadmissible under §§ 1182(a)(6)(C) or 1182(a)(7) removed without further hearing or review. 8 U.S.C. § 1225(b)(1)(A)(i). This process is commonly referred to as an expedited removal or expedited removal proceeding. An expedited removal proceeding is limited to a noncitizen "who is arriving in the United States" or, as designated by the Attorney General, a noncitizen "who has not been admitted or paroled into the United States, and who has not affirmatively shown . . . [they were] physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility." § 1225(b)(1)(a)(i), (iii). As relevant here, section 1182(a)(7)(A)(i)(I) explains that "any immigrant at the time of application for admission" "who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document" is inadmissible.
At that time, expedited removal was available to noncitizens who were encountered by an immigration officer within 100 air miles of the international land border and who had not established they had been physically in the United States for the fourteen days immediately prior to the date of encounter. Designating Aliens for Expedited Removal, 69 Fed.Reg. 48877-01, 48880 (Aug. 11, 2004).
There is another removal proceeding for deciding the inadmissibility or deportation of a noncitizen. 8 U.S.C. § 1229a. This removal proceeding requires that an immigration judge conduct the proceedings and generally provides more rights for the noncitizen. Id. Any ground of inadmissibility under § 1182(a) may be heard in such a hearing. § 1229a(a)(2).
Here, in 2012, immigration authorities contacted Defendant near North Komelik, Arizona. (Doc. 32-1 at 2.) After the contact, the immigration agent placed Defendant in an expedited removal proceeding. (Doc. 12-3 at 2.) On September 29, 2102, the immigration officer found Defendant "was an immigrant not in possession of a valid unexpired immigration visa, reentry permit, border crossing card, or other valid entry documents required by the INA." (Doc. 12-2 at 2.) Thus, Defendant was found in admissible under § 1182(a)(7)(A)(i)(I). Id.
Defendant argues he was not inadmissible under § 1182(a)(7) because he had made no application for admission. (Doc. 12 at 8.) The Government contends that § 1225(a)(1)'s definition of "applicant for admission" resolves this matter, such that Defendant was an applicant for admission and clearly inadmissible under §1182(a)(7). (Doc. 19 at 3-4.) Therefore, the crux of Defendant's argument is the definition of "at the time of application for admission."
The INA defines "application for admission" as referencing "the application for admission into the United States and not to the application for the issuance of an immigrant or nonimmigrant visa." 8 U.S.C. § 1101(a)(4). Overall, this definition is not extremely helpful in determining if attempting to cross or crossing the international border illegally at a place other than a port of entry is an "application for admission" within the meaning of § 1182(a)(7). "[A]dmission" means, "with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." § 1101(a)(13)(A). Section "1101(a)(13)(A)'s definition is just a default, and, when statutory context has demanded, [courts] have read the term 'admitted' more broadly than the 'strict definition' in § 1101(a)(13)(A)." Posos-Sanchez v. Garland, 3 F.4th 1176, 1183 (9th Cir. 2021) (citing United States v. Hernandez-Arias, 757 F.3d 974, 880 (9th Cir. 2014)). Section 1225(a)(1) defines "applicants for admission" as a noncitizen "present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters)." Thus, it is clear, Defendant was an "applicant for admission," but Defendant argues there was no "application for admission" during this time.
In 2020, the Ninth Circuit stated that it had previously conflated the phrases "applicant for admission" and "application for admission" for purposes of determining inadmissibility under § 1182(a)(7). Torres v. Barr, 976 F.3d 918, 922, 927 (9th Cir. 2020) (en banc). The facts of this case are very particular and vastly different than those present in this matter. Torres had been lawfully living and working in the Commonwealth of Northern Mariana Islands for over a decade when the Immigration and Nationality Act applied to the Islands. Id. at 920. Congress provided a two-year reprieve preventing any alien lawfully present on November 28, 2009, from being removed under § 1182(a)(6) for being present in the United States without admission or parole. Id. at 922. The Federal Government then began charging residents as removable under § 1182(a)(7) for failing to possess valid entry documents at the time of application for admission. Id. Torres argued she had not yet submitted an application for admission and thus was not removable under the subsection. Id. The court agreed and found that Torres was not removable under § 1182(a)(7). Id. at 931. The court concluded that "at the time of application for admission" refers to "the particular point in time when a noncitizen submits an application to physically enter into the United States." Id. 924.
The Supreme Court of the United States has provided some guidance on this issue with more analogous facts. See Dep't of Homeland Sec. v. Thuraissigiam, 140 S.Ct. 1959 (2020). In Thuraissigiam, Thuraissigiam attempted to enter the United States illegally, not at a port of entry, and was apprehended twenty-five yards from the international border. Id. at 1964. He was detained for expedited removal as being removable under § 1182(a)(7)(A)(i)(I). Id. at 1967. The Supreme Court continued that "[a]n alien who arrives at a 'port of entry,' i.e., a place where an alien may lawfully enter, must apply for admission. An alien like respondent who is caught trying to enter at some other spot is treated the same way." Id. at 1964.
Reading Torres and Thuraissigiam together, the Court is convinced that the specific facts of Torres called for admission to be read narrowly. The facts of Thuraissigiam are more comparable and thus more persuasive. The Supreme Court stated that a person attempting to enter illegally through a place other than a port of entry was inadmissible under § 1182(a)(7). Further, the Supreme Court indicated that arriving at a port of entry is not necessary to be removable under § 1182(a)(7). See Thuraissigiam, 140 S.Ct. at 1964. Thus, the Court remains unconvinced that a non-citizen must arrive at a port of entry to be removable under § 1182(a)(7). Additionally, temporary success in illegally crossing the border provides little distinction. Accordingly, Defendant was removable on that basis.
Moreover, when considering statutory language, courts should strive to avoid absurd results or rending language superfluous, if possible. United States v. Thomsen, 830 F.3d 1049, 1057-58 (9th Cir. 2016). First, Defendant's reading of the statute presents absurd results. In Thuraissigiam, the Supreme Court noted that "[e]very year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally." 140 S.Ct. at 1963. If those aliens entering or attempting to enter outside of the border were not subject to expedited removal because there was no application for admission, then the immigration system would shutdown or be overrun. Second, Defendant's reading renders portions of the expedited proceeding statute redundant or superfluous. The statute states that it applies to arriving aliens or aliens "who ha[ve] not been admitted or paroled into the United States, and who ha[ve] not affirmatively shown, to the satisfaction of an immigration officer, that the alien[s] ha[ve] been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility." § 1225(b)(1)(A)(iii). This clause would be completely read out of the statute under Defendant's interpretation. Accordingly, the Court rejects Defendant's interpretation of Torres and "application of admission."
Defendant unconvincingly argues that there would be other solutions, such as Title 42 or stipulated orders. (Doc. 32 at 3-4.)
Based on the above, Defendant was properly placed in expedited removal proceedings in 2012. As such his removal proceeding was not fundamentally unfair. Hence, Defendant's motion should be denied.
RECOMMENDATION
Consequently, this Court recommends, after its independent review of the record, the District Court deny Defendant's motion (Doc. 12). 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.