United States District Court, N.D. California
Order Filed: January 13, 2014
[Copyrighted Material Omitted]
For Carlos Roberto Rodriguez-Vasquez, also known as Roberto Vasquez, also known as Carlos Roberto Rodriguez, Defendant: Jodi Linker, LEAD ATTORNEY, Office of the Federal Public Defender, San Francisco, CA.
For USA, Plaintiff: Janaki Suhrud Gandhi, LEAD ATTORNEY, United States Attorney's Office, Northern District of California, San Francisco, CA.
SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE.
ORDER DENYING MOTION TO DISMISS INDICTMENT
On October 18, 2013, the Court heard argument on a motion to dismiss the indictment brought by defendant Carlos Roberto Rodriguez-Vasquez. The defendant seeks to dismiss the indictment on the grounds that his prior deportation violated due process, and therefore cannot serve as a predicate deportation in this case. Having considered the arguments of counsel and the papers submitted, the Court DENIES the defendant's motion.
On May 21, 2013, the defendant, Carlos Roberto Rodriguez-Vasquez, was charged
in a single - count indictment with illegal reentry after deportation in violation of 8 United States Code § 1326. Indictment. The defendant is a Honduran citizen who initially came to the United States in 1995. Declaration of Jodi Linker in Support of Defendant's Motion to Dismiss Indictment (" Linker Decl." ) Ex. A. In 2008, the defendant was convicted of several drug charges and sentenced to four years in state prison. Linker Decl. Ex. B. On January 27, 2011, while still serving his prison term, the defendant was interviewed by an immigration officer. Id. The defendant admitted that he was in the United States illegally. Id. He told the immigration officer that his parents were also citizens of Honduras, although he was unable to provide addresses for them. Id. The defendant further told the immigration officer that he feared " persecution or torture" if he was removed and sent back to Honduras. Id. According to Department of Homeland Security records, the defendant based his claim of fear on a lack of friends or relatives in Honduras. Declaration of Janaki Gandhi in Support of the United States' Opposition to the Defendant's Motion to Dismiss Indictment (" Gandhi Decl." ) Ex. B.
On February 15, 2011, the Department of Homeland Security served the defendant a notice of intent to issue a final administrative removal order. Linker Decl. Ex. C. The form provided the defendant with the opportunity to check boxes indicating whether he sought withholding or deferral of removal, or in the alternative, admitted that he was deportable. Id. In the box adjacent to the words " [u]nder the Convention Against Torture, because I fear torture in that country or those countries," a mark appears. Id. However, no country is indicated as being the source of any fear, and the defendant did not sign or date the form in the space provided. Id. Directly beneath the ambiguous check mark, the defendant checked the boxes indicating that he admitted he was deportable, and wished to waive his right to apply for judicial review. Id. The defendant signed and dated this portion of the form. Id.
On February 16, 2011, the Department of Homeland Security issued a final administrative removal order, based on the defendant's responses to the February 15, 2011 notice of intent. Linker Decl. Ex. D. The removal order was served on the defendant on February 22, 2011. Id. The defendant's immigration file contained both English and Spanish copies of information regarding the defendant's right to a credible fear interview, but although they are also dated February 22, 2011, they are unsigned. See Defendant's Motion to Dismiss Indictment (" Def.'s Mot." ) at 3; Linker Decl. Ex. F.
On March 1, 2011, the defendant was again interviewed by an immigration official. Gandhi Decl. Ex. B. In this interview, the defendant is reported to have said that he no longer feared returning and wished to be removed as soon as possible. Id. The defendant recalls this interview differently, and claims that he told the immigration official that he feared returning to Honduras because of " the violence in Honduras and fearing [sic] my safety." Linker Decl. Ex. A. On March 3, 2011, the defendant was removed from this country and sent back to Honduras. Gandhi Decl. Ex. B.
After remaining in Honduras for some time, the defendant again illegally entered the United States. See Linker Decl. Exs. A, I. On May 3, 2013, ICE agents arrested the defendant in San Francisco, California. Linker Decl. Ex. G.
The defendant now moves to dismiss the indictment on the grounds that his due process rights were violated in his 2011 deportation, making his deportation unlawful and thus negating an essential element of the crime with which he is now charged. Def.'s Mot. at 1.
It is a criminal offense to reenter the United States following deportation. 8 U.S.C. § 1326. However, criminal penalties may not be imposed automatically following every deportation; rather, " [i]f the statute envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with the constitutional requirement of due process." United States v. Mendoza-Lopez, 481 U.S. 828, 837, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). Thus, a defendant charged with illegal reentry after deportation may collaterally attack the removal order on due process grounds. United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). To sustain such collateral attack the defendant must demonstrate that: " (1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). If the removal order is found to be fundamentally unfair, the first two requirements are deemed satisfied. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1049 (9th Cir. 2004). A challenged removal order is only fundamentally unfair if: " (1) an alien's due process rights were violated by defects in the underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." Pallares-Galan, 359 F.3d at 1095 (quoting United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir. 2000) (internal quotation marks omitted)). Thus, a due process violation alone is insufficient; actual prejudice must be shown before a removal order is deemed fundamentally unfair. United States v. Reyes-Bonilla, 671 F.3d 1036, 1049 (9th Cir. 2012).
Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (" CAT" ) prohibits signatory nations from returning an individual to a country where he will be subject to torture. See Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001). Torture, for CAT purposes, is defined as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
8 C.F.R. § 1208.18(a)(1). The individual asserting the possibility of torture must prove that it is more likely than not that he will be tortured if sent to the proposed country of removal. 8 C.F.R. § 1208.16(c)(2). Thus, to establish prejudice
stemming from the lack of CAT relief a defendant must demonstrate a plausible claim to such relief. United States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir. 2011). Establishing a plausible claim requires a showing beyond mere possibility. Id. Indeed, " to show plausible grounds for relief, an alien must show that, 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." Id. ...