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United States v. Mendoza-Alvarez

United States District Court, Ninth Circuit

October 23, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ALFREDO MENDOZA-ALVAREZ, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are 1) the motion to dismiss the indictment and to hold an evidentiary hearing (ECF No. 26); and 2) the motion to produce discovery (ECF No. 16-4) filed by Defendant Alfredo Mendoza-Alvarez.

FACTS

In January 1999, Defendant received a Notice To Appear before an Immigration Judge. On January 27, 1999, Defendant appeared before an Immigration Judge and was ordered removed to Mexico. On February 3, 1999, Defendant was physically removed to Mexico. (ECF No. 31-6 at 7).[1]

Following his February 3, 1999 removal, Defendant was removed on December 23, 1999; and June 30, 2000. (ECF No. 31-6).

On September 13, 2002, Defendant was convicted in the United States District Court for the Eastern District of Washington of "Alien in the U.S. after Deportation" in violation of 8 U.S.C. § 1326. (ECF No. 31-7at 1). Defendant was sentenced to time served and removed to Mexico.

On February 9, 2011, Defendant was convicted in the United States District Court for the Eastern District of Washington of "Alien in the U.S. after Deportation" in violation of 8 U.S.C. § 1326. (ECF No. 31-7 at 6). Defendant was sentenced to serve 8 months imprisonment followed by 3 years of supervised release. Defendant was removed to Mexico.

On September 20, 2011, Defendant was arrested in the Southern District of California. Defendant was informed of his rights, including his right to counsel in an immigration proceeding using a Form I-826. (ECF No. 31-3 at 5). In a statement taken on September 20, 2011in the Spanish language by an immigration officer, Defendant admitted that he is a Mexican citizen and that he illegally entered the United States. (ECF No. 31-3 at 6-7). Defendant entered a plea of guilty pursuant to a Plea Agreement to a Superseding Information charging him with misdemeanor illegal entry in violation of 8 U.S.C. § 1325. (ECF No. 31-7 at 13-15). On February 7, 2012, Defendant was sentenced to serve 6 months imprisonment. (ECF No. 31-7 at 17).

On May 22, 2012, the United States District Court for the Eastern District of Washington revoked the Defendant's supervised release imposed in February 2011 for the violation of 8 U.S.C. 1326 and sentenced Defendant to serve 9 months imprisonment with 4.5 months consecutive to the misdemeanor illegal entry and 4.5 months concurrent to the misdemeanor illegal entry in the Southern District of California. (ECF No. 31-7 at 12).

While serving the sentence for misdemeanor illegal entry from the Southern District of California and supervised release violation from the Eastern District of Washington at a federal correctional facility in Texas, Defendant was placed in expedited removal proceedings under 8 U.S.C. § 1225.[2] On November 26, 2012, Agent Pereida, an Immigration Enforcement Agent with the United States Department of Homeland Security, interviewed Defendant and reviewed the personal information provided by Defendant and other information from record checks. Agent Pareida noted in his report that Defendant had entered the United States illegally on September 20, 2011 near Tecate, California without inspection by an immigration officer and that Defendant claimed fear of returning to Mexico. (ECF No. 31-4 at 2). On November 29, 2012, Agent Pereida prepared an I-860 documenting the charges forming the basis of the expedited removal proceedings. (ECF No. 31-4 at 5-6).

On November 30, 2012, Agent Lazcano conducted a sworn statement with Defendant. Defendant admitted the facts forming the basis of the charges underlying his deportation and stated "Yes" to the question "Do you have any fear of persecution or torture if you are returned to your country?" (ECF No. 31-4 at 8). Agent Lazcano typed Defendant's answers directly onto the Form I-867A. At the conclusion of the interview, Agent Lazcano printed the sworn statement to review with Defendant. Defendant refused to review and sign the Form I-867A. Agent Lazcano printed "Refused to Sign" on the signature block and returned the Form I-867A to Agent Pereida.[3]

Agent Pereida forwarded all of the documents to his supervisor to determine whether an Order of Removal would issue. Agent Pereida subsequently received a signed Form I-860 Order of Removal. (ECF No. 31-4 at 5).

On December 13, 2012, Agent Pereida personally served the Form I-860 on Defendant, informed him of the charges against him, and informed him that an Order of Removal had been issued. Agent Pereida states: "At no point did Mendoza-Alvarez indicate to me that any of the charges I read to him were incorrect or inaccurate." (ECF No. 31-1). Agent Pereida served Defendant with the Form I-860 containing the signed Order of Removal. Immigration officials ...


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