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United States v. Rodriguez-Vasquez

United States District Court, N.D. California

October 23, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
CARLOS ROBERTO RODRIGUEZ-VASQUEZ, Defendant

Order Filed: January 13, 2014

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[Copyrighted Material Omitted]

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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.

OPINION

SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE.

Page 1149

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.

BACKGROUND

On May 21, 2013, the defendant, Carlos Roberto Rodriguez-Vasquez, was charged

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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.[1]

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.

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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.

LEGAL STANDARD

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

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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. (quoting United States v. Corrales-Beltran, 192 F.3d 1311, 1318 (9th Cir. 1999) (alteration in original) (internal quotation marks omitted)).

DISCUSSION

The defendant argues that his due process rights were violated because his initial claim of fear of torture in Honduras was never adequately explored during his removal process. Def.'s Mot. at 7-11. The record is ambiguous regarding what actually transpired after the defendant initially reported his claim of fear. However, the Court need not resolve the issue because, in any event, the Court finds that the defendant has failed to establish that he suffered prejudice as a result.

To have succeeded with a CAT claim in 2011, the defendant would have needed to prove that it was more likely than not that he would be tortured if removed to Honduras, and that a public official would have acquiesced in his torture. See 8 C.F.R. § 1208.18(a). " Government acquiescence does not require actual knowledge or willful acceptance of torture; awareness and willful blindness will suffice." Aguilar-Ramos v. Holder, 594 F.3d 701, 705-06 (9th Cir. 2010). However, to prove acquiescence, a defendant must demonstrate that, " prior to the activity constituting torture, [a government official had] awareness of such activity and thereafter breach[ed] his or her legal responsibility to intervene to prevent such activity." Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1059 (9th Cir. 2006). The Court finds that the defendant has failed to establish a plausible claim that, in 2011, he could have demonstrated that he would more likely than not suffer torture in Honduras and that Honduran public officials would have acquiesced.

1. The Defendant Has Not Established That He Could Have Made Out a Plausible Torture Claim in 2011.

To establish prejudice stemming from a due process violation, a defendant must show that he had plausible grounds for relief at the time of the challenged deportation. See Barajas-Alvarado, 655 F.3d at 1089 (" Establishing 'plausibility' requires more than establishing a mere 'possibility.'" ). Eligibility for CAT deferral requires a defendant to demonstrate that it is more likely than not that he would suffer torture in the country of removal. 8 C.F.R. § 1208.16(c)(2). Thus, to succeed here, the defendant would have to establish that, in 2011, he had a claim that plausibly could have convinced an Immigration Judge that the defendant would more likely than not suffer torture if removed to Honduras. See Barajas-Alvarado, 655 F.3d at 1089.

The defendant presents a single argument for why he had a plausible claim of eligibility for CAT deferral in 2011: he claims that his mother, who was still living in Honduras, told him that, because he had lived in the United States, " people in Honduras would try to extort [him] for money and threaten [his] life." Linker Decl. Ex. A. The defendant further explains his claim as a fear " of the violence and gangs in Honduras." Id. In support of his

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claim, the defendant adduces three pieces of evidence: (1) a State Department human rights report on Honduras for the year 2011; (2) two records of complaints filed with the Honduran police in which the defendant is referenced; and (3) a declaration by immigration attorney Angela Bean. See Linker Decl. Exs. H, I, J. These documents are insufficient to establish a plausible claim of torture.

First, the State Department report does not support the defendant's claim that he could have made out a plausible claim of torture in early 2011. The report details investigations of law enforcement misconduct, including instances of excessive force and torture. Linker Decl. Ex. H, at 2-4. However, it goes on to state that, in 2011, the Honduran government created the National Committee and Advisory Council against Torture and Cruel, Inhuman, and Degrading Treatment in response to the problem. Id. at 3. Thus, it appears that the Honduran government was actually attempting to make the country safer at the time the defendant was removed. Moreover, even if the report reflected a deeply dangerous country, with a high generalized risk of torture, the defendant would still have had to prove that, based on his unique circumstances, the defendant himself would more likely than not face torture if he were removed to Honduras. See, e.g., Corrales-Beltran, 192 F.3d at 1318; see also Go v. Holder, 640 F.3d 1047, 1054 (9th Cir. 2011) (stating that " country reports contain[ing] generalized evidence suggesting a relatively high level of mistreatment and abuse" are insufficient because the specific circumstances of the particular case must indicate a high likelihood of torture in the country of removal). Nothing in the State Department report supports that conclusion. Indeed, the report does not even address the defendant's particular contention - that, as a person who had previously resided in the United States, he would likely be tortured on his return. Cf. United States v. Parada-Baños, No. CR-12-0635 EMC, 2013 WL 3187404, at *10 (N.D. Cal. June 21, 2013) (explicitly rejecting a defendant's argument that individuals who had previously resided in the United States were ipso facto at a heightened risk of torture).

Second, the records of complaints filed with Honduran police do not support the defendant's argument. The defendant submitted two declarations from a Honduran law enforcement agency regarding complaints received from the defendant and a friend. Linker Decl. Ex. I. The first complaint was filed by the defendant on July 18, 2011 and reports death threats allegedly made by gang members against the defendant and his family. Id. The record of the first complaint also indicates that these death threats were the impetus for the defendant's decision on October 1, 2012 to reenter the United States. Id. The second complaint was filed on November 13, 2012 by a friend of the defendant's, and reports death threats against both the friend and the defendant. Id. Significantly, both complaints were filed after the defendant was removed from the United States in March, 2011, and they therefore would not have been part of the record in 2011 had the defendant challenged his removal on CAT grounds. Therefore, the police reports are irrelevant to the defendant's argument that he could have established plausible grounds for relief in 2011.[2]

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The defendant contends that, although they could not have been part of the record in 2011, these reports now prove that he was right in his prediction of what would happen to him if removed to Honduras. Defendant's Reply to Motion to Dismiss Indictment at 15. However, defendant's burden here is to demonstrate that, in 2011, he could have made out a plausible claim that he would more likely than not be tortured if sent back to Honduras. These reports, which are dated after and reflect activity after that time, cannot do so. The Court is aware of no case - and the defendant cites none - holding that death threats alone constitute torture under the CAT standard. The receipt of these threats after he returned to Honduras, while undoubtedly disturbing, does not support the defendant's claim that he could have established a plausible claim of torture prior to removal.

Finally, the immigration attorney's declaration does not establish that the defendant had a plausible torture claim in 2011. The declaration notes that extortion - the act the defendant claims to have feared - does not constitute torture. Linker Decl. Ex. J. It goes on to state that, if the defendant was extorted or even kidnapped, and if he was beaten during these acts, then the defendant's experience might amount to torture. Id. However, the declaration does not point to anything specific about the defendant's circumstances to indicate why the defendant would be uniquely likely to suffer extortion or kidnapping if returned to Honduras. See Corrales-Beltran, 192 F.3d at 1318. At least one court in this District has rejected an argument very similar to that advanced here. See Parada-Baños, 2013 WL 3187404, at *10 (" [The expert] does not state that individuals are subject to a heightened risk of torture; that heightened risk may only be inferred by assuming that individuals may resist extortion and then be tortured as a result of their resistance." ). The declaration's attenuated conclusions, based on almost no detail regarding the defendant's unique circumstances in Honduras, are insufficient.

In sum, the Court finds that the defendant's proffered evidence does not establish that, in 2011, he would have been able to present a plausible claim of torture if removed to Honduras.

2. The Defendant Could Not Have Established Government Acquiescence in 2011.

The defendant's sole allegation regarding government acquiescence is that " the [Honduran] police are so corrupt that they are involved in all of this and they will not protect me from threats." Linker Decl. Ex. A. In support of this allegation, the defendant provides a State Department human rights report indicating that some police and government agents are corrupt and have committed unlawful killings. Id. Ex. H. However, the defendant fails to allege any specific incidents in which he required help from the government, or sought help and was denied or ignored. Indeed, the only evidence the defendant offers regarding his own interactions with Honduran law enforcement are the police reports from 2011 and 2012. See Linker Decl. Ex. I. The defendant does not allege that law enforcement failed to follow

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up on the complaints; to the contrary, he has introduced the reports of the official complaints as evidence that he received death threats. That reports were created, maintained, and transmitted to the defendant at his apparent request, militates against a finding of government acquiescence in torture.

The defendant's argument is further weakened by the absence of any reports of violence, gang interactions, or anything approaching torture from his early life in Honduras. The defendant apparently resided in his home country without incident until he was nearly thirty years old. See Linker Decl. Ex. A. (" I came to the United States in 1995 to look for a better future." ). If the defendant did experience any violent incidents, he failed to report them. See Santos-Lemus v. Mukasey, 542 F.3d 738, 748 (9th Cir. 2008) (holding that the defendant failed to demonstrate government acquiescence, in part because he never reported alleged gang incidents to the government and therefore could not prove that the government was even aware of a problem). Moreover, the defendant's CAT claim is premised on " violence and gangs in Honduras." Linker Decl. Ex. A. Absent specific allegations from the defendant regarding government action or inaction related to his particular circumstances, the defendant's arguments regarding government acquiescence in torture as a result of gang violence cannot succeed. See Parada-Baños, 2013 WL 3187404, at *11 (noting that " no court has found the requisite government acquiescence based on a similar fact pattern" of torture by gangs) (emphasis in original) (collecting cases from across the country).

Accordingly, the Court finds that the defendant has failed to demonstrate a plausible claim that he more likely than not would have been subject to torture in which the government would have acquiesced in 2011, and he therefore has not set forth sufficient evidence to show prejudice stemming from his 2011 removal.

CONCLUSION

For the foregoing reasons and for good cause shown, and on the record currently before it, the Court DENIES the defendant's motion to dismiss the indictment.

IT IS SO ORDERED.

ORDER DENYING MOTION FOR RECONSIDERATION

SUSAN ILLSTON, UNITED STATES DISTRICT JUDGE.

On December 19, 2013, the Court heard argument on a motion for reconsideration brought by defendant Carlos Roberto Rodriguez-Vasquez. The defendant seeks reconsideration of the Court's previous Order denying his motion to dismiss the indictment against him. Having considered the arguments of counsel and the papers submitted, the Court DENIES the defendant's motion.

BACKGROUND

On May 21, 2013, defendant Carlos Roberto Rodriguez Vasquez was charged in a single-count indictment with illegal reentry after deportation, in violation of 8 U.S.C. § 1326. On August 23, 2013, the defendant filed a motion to dismiss the indictment, alleging that his prior removal from this country violated due process.[1] Dkt. 14. On October 23, 2013, the Court denied the defendant's motion, finding that, even if the removal proceedings violated the defendant's due process rights, he was unable to establish that he had suffered prejudice as a result. Dkt. 23. On November

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6, 2013, the defendant filed a motion for leave to file a motion for reconsideration, based on a recent Ninth Circuit opinion. Dkt. 24. On November 15, 2013, the Court orally granted the defendant's motion for leave to file a motion for reconsideration.

LEGAL STANDARD

" Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Sch. Dist. No. 1J v. A CandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). While a court is permitted to reconsider a prior order, this is " an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation and internal quotation marks omitted). A motion for reconsideration may not be used to present arguments that were or could have been raised in the initial motion. Id.

DISCUSSION

In his motion for reconsideration, the defendant contends that the Court failed to consider material facts or dispositive legal arguments in its prior Order. Specifically, the defendant argues that: (1) the Court overstated the defendant's burden to state plausible grounds for relief; (2) the Court did not accord sufficient weight to the declarations of the defendant and his immigration expert; and (3) the Court mistakenly analyzed the defendant's claim for Convention Against Torture (" CAT" ) relief as though he had been given the opportunity to fully develop his claim. For the following reasons, the Court rejects the defendant's arguments.

1. The Defendant's Burden.

The defendant first argues that the Court improperly placed too heavy a burden on him to demonstrate that he could have had plausible grounds for relief from removal in 2011. As explained in the Court's previous order, a prior 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." United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004) (quoting United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir. 2000) (internal quotation marks omitted)). To establish prejudice, the defendant must demonstrate that he had a plausible ground for relief from removal. United States v. Muro-Inclan, 249 F.3d 1180, 1185 (9th Cir. 2001). In other words, the defendant must make a prima facie showing of prejudice. United States v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir. 1986).

A prima facie case of prejudice is established if a defendant produces evidence that the proceedings' alleged errors damaged his interests " in such a manner so as actually to have had the potential for affecting the outcome of the proceedings." Id. To determine whether an alleged error had the potential to affect the outcome of the removal proceedings, the Court must examine the standard the defendant would have been held to when seeking substantive relief. See Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir. 1985). Only after the defendant makes a prima facie showing of prejudice does the burden shift to the government to demonstrate that the alleged defects could not have altered the proceedings' outcome. United States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003).

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An alien seeking substantive CAT relief must demonstrate that he would more likely than not suffer torture if removed to the proposed country, and that a public official in that country would acquiesce in that torture. 8 C.F.R. § 1208.18(a). When an alien alleges prejudice stemming from an inability to seek CAT relief in a prior removal, however, he need not demonstrate that relief actually would have been granted. Instead, the alien need only demonstrate that he had a plausible claim to CAT relief. United States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir. 2011). " [T]o 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. (quoting United States v. Corrales-Beltran, 192 F.3d 1311, 1318 (9th Cir. 1999) (alteration in original) (internal quotation marks omitted)). Thus, to establish a prima facie case of prejudice stemming from an inability to seek CAT relief, a defendant must demonstrate that it was plausible that, had he presented his case to an immigration judge (" IJ" ), the IJ would have found it more likely than not that the defendant would suffer torture if removed to his home country, and that a public official in that country would acquiesce in that torture.

The defendant has not met his burden here. To establish the required prima facie showing of prejudice, the defendant needed to demonstrate that the alleged errors in his 2011 removal proceedings prejudiced his interests " in such a manner so as actually to have had the potential for affecting the outcome of the proceedings." See Cerda-Pena, 799 F.2d at 1379. In other words, the defendant needed to demonstrate that, in light of his unique circumstances, it was plausible -- not merely conceivable -- that, had he been given the chance to present his evidence to an IJ in 2011, the IJ would have exercised his discretion in the defendant's favor. See Corrales-Beltran, 192 F.3d at 1318. For an IJ to have exercised his discretion in the defendant's favor, the IJ would have needed to find that it was more likely than not that, if the defendant was removed to Honduras, he would face torture in which a government official would acquiesce. See 8 C.F.R. § 1208.18(a).

As the Court concluded in its prior Order, the evidence the defendant submitted in support of his prior motion was insufficient to establish a plausible CAT claim. United States v. Rodriguez-Vasquez, No. 13-0329 SI, 4 F.Supp.3d 1146, 2013 WL 5755191, *3-5 (N.D. Cal. Oct. 23, 2013). The Court considered the defendant's declaration, a declaration submitted by immigration attorney Angela Bean, a State Department human rights report for the year 2011, and records of two complaints made to the Honduran police that referenced the defendant. Id. The Court noted that the defendant's claim of fear of torture was premised on his having previously resided in the United States. Id. Although the defendant stated that he had a fear " of the violence and gangs in Honduras," his only statements regarding why he was uniquely likely to be a victim of such violence related to his status as an individual who had lived in the United States. Id. The Court further noted that the evidence the defendant presented failed to establish a showing of government acquiescence based on his individual circumstances. [WL] at *5. As the Court concluded, the defendant's supporting evidence could not have established a plausible CAT claim in 2011. Id. In other words, the defendant failed to establish a prima facie case of prejudice

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stemming from his inability to seek CAT relief because he could not demonstrate that the alleged errors in the 2011 proceedings prejudiced his interests in a manner that had the potential to affect the outcome of the proceedings. See Cerda-Pena, 799 F.2d at 1379.

The defendant argues that this case is on all fours with one of the Ninth Circuit's recent, unpublished decisions, United States v. Cuenca-Vega, No. 12-10356, 544 F.Appx. 688, 2013 WL 5814760 (9th Cir. Oct. 30, 2013). In Cuenca-Vega, the Ninth Circuit held that the defendant had established a prima facie showing of prejudice because the government conceded that the defendant was eligible for pre-conclusion voluntary departure. [WL] at *2. Thus, the burden shifted to the government to prove that the IJ's error could not have affected the outcome of the proceedings. Id.

The defendant argues that the same is true here; that is, that the government conceded the defendant was eligible for CAT relief and therefore he has successfully established a prima facie showing of prejudice. Defendant's Motion for Reconsideration (" Mot." ) at 4. The defendant misstates the government's position. The government agrees that the defendant's felony conviction was not a statutory bar to his seeking relief under CAT; however, unlike in Cuenca-Vega, the government disputes the defendant's ability to successfully obtain such relief. United States' Opposition to Defendant's Motion to Reconsider at 5-6. The government contends that mere statutory eligibility is insufficient; instead, the defendant must meet the Ninth Circuit's well-established standard of demonstrating prejudice. Id. Only by demonstrating a prima facie showing of plausibility of relief can the defendant establish prejudice, and this the defendant has failed to do. Indeed, finding otherwise would lead to the result that, anytime the government agreed that a defendant was not statutorily barred from seeking a particular kind of relief from removal, the Court would be compelled to find that the defendant had thereby established his prima facie case. The law does not command such a result.

In sum, the Court rejects the defendant's contention that reconsideration is warranted because the Court imposed the wrong legal standard in its prior ruling.

2. Weight Accorded to the Declarations.

The defendant argues that the Court did not accord sufficient weight to his declaration and to the declaration submitted by immigration lawyer Angela Bean. Mot. at 4. He contends that Ms. Bean's declaration, coupled with his own explanation of his fears regarding returning to Honduras, were sufficient for the Court to find that he established a prima facie showing of prejudice. Id.

As discussed above, in its prior ruling, the Court considered the defendant's declaration and found that the fears he articulated did not demonstrate that he could have established a plausible CAT claim in 2011. Rodriguez-Vasquez, 2013 WL 5755191, at *3. The defendant now asserts that his " uncontested declaration states that he was afraid of being extorted, kidnaped, or even killed" at the time of his 2011 removal. Mot. at 5. In fact, the defendant's declaration states that his mother had told him that Honduras " was so dangerous for [him] there," and that, because he had lived in this country, " people in Honduras would try to extort [him] for money and threaten [his] life." Dkt. 15-1, Ex. A, ¶ 7. In his own words, in 2011 the defendant was afraid that people would want his money and would threaten him in order to get it. Id. The only reference the defendant makes to kidnapping relates to occurrences

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after his 2011 removal, id. at ¶ 9, that is, to the police complaints that the Court's previous Order found were irrelevant to the 2011 proceedings, Rodriguez-Vasquez, 2013 WL 5755191, at *4. Thus, the defendant's declaration does not support that, in 2011, he feared extortion, kidnapping, and death. At most, it supports that he feared extortion and death threats, two actions that the Court's prior order found did not constitute torture. Rodriguez-Vasquez, 2013 WL 5755191, at *3-5.

The defendant further argues that " the Court cannot simply dismiss Mr. Rodriguez's clear and direct testimony" of fear. Mot. at 5. Contrary to the defendant's assertion, the Court's prior order does not dismiss the defendant's declaration. It merely concludes that the defendant's statements do not demonstrate that it was plausible that, had the defendant had the opportunity to present his fears to an IJ in 2011, the IJ would have found it more likely than not that the defendant would face torture if returned to Honduras. Rodriguez-Vasquez, 2013 WL 5755191, at *3-5. In other words, the Court's prior order found that the defendant's declaration did not establish a prima facie showing of prejudice.

The defendant also contends the Court failed to consider Ms. Bean's expert opinion regarding the strength of the defendant's CAT claims. Mot. at 4-5. The Court did not disregard Ms. Bean's declaration in its prior ruling. To the contrary, the Court considered Ms. Bean's declaration and determined that it failed to demonstrate that the defendant could have established a plausible CAT claim in 2011. Rodriguez-Vasquez, 2013 WL 5755191, at *5. The Court noted that Ms. Bean admitted that extortion, and even kidnapping, do not constitute torture. Id. The Court found Ms. Bean's conclusions regarding the defendant's unique likelihood of facing torture in Honduras attenuated and insufficient. Id.; cf. Muro-Inclan, 249 F.3d at 1186 (finding evidence of hardship insufficient where it consisted of the " conclusory opinion of the immigration lawyer and the very brief, nonspecific declaration from [the defendant's] wife" ). For the same reasons, the Court found Ms. Bean's conclusions regarding government acquiescence unpersuasive. See Muro-Inclan, 249 F.3d at 1186 n.4 (noting, in the extreme hardship context, that " [t]he attorney's expert opinion, although entitled to some weight, is not independently sufficient to overcome the otherwise insufficient showing" ).

The defendant argues that the combination of his declaration with Ms. Bean's declaration meets his burden of establishing a prima facie showing of prejudice. Mot. at 4. The Court has already found that the defendant's declaration does not establish a prima facie showing of prejudice; therefore, the Court must determine whether Ms. Bean's declaration adds sufficient evidence to meet the defendant's burden. Ms. Bean based her opinions regarding the defendant's unique eligibility for CAT relief solely on a reading of the defendant's declaration. See Dkt. 15-1, Ex. J, ¶ 9 (" Nonetheless, from his declaration, he appears to have had a colorable CAT claim." ). Ms. Bean notes that the defendant indicated " he was afraid of being extorted, kidnapped, or even killed." Id. ¶ 11. As the Court found in its prior Order and has reiterated here, the basis for the defendant's claim of fear in 2011 centered on extortion and death threats, not kidnapping and fear of death. Even if the defendant had feared kidnapping in 2011, Ms. Bean further noted that kidnapping and extortion are not torture. Id. She states that, if he was actually kidnapped or extorted, and if he suffered a beating while being kidnapped or extorted,

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then it " very well could amount [to] torture." Id. In its prior Order, the Court found Ms. Bean's conclusions regarding the defendant's likelihood of suffering torture attenuated, based as they were on almost no factual detail regarding the defendant's unique circumstances. Rodriguez-Vasquez, 2013 WL 5755191, at *5. On further review of the record supporting the prior motion, the Court is not persuaded by the defendant's argument that the two declarations established a prima facie showing of prejudice.

Accordingly, the Court finds that reconsideration is not warranted on the grounds that the Court failed to adequately consider the declarations of the defendant and immigration attorney Angela Bean.

3. Posture of the Defendant's CAT Claim.

Finally, the defendant argues that the Court applied an improper legal standard in its previous Order because it compared the defendant's undeveloped CAT claim to cases where the defendants had the opportunity to fully develop their claims before IJs. Mot. at 2-3. The defendant, however, cites no cases in support of his contention that a different standard should apply in these circumstances. In fact, the Ninth Circuit does not differentiate between cases in this way. Compare Gonzalez-Valerio, 342 F.3d at 1054 (requiring defendant who developed his claim before an IJ to establish a prima facie showing of prejudice by demonstrating plausible grounds for relief); with United States v. Reyes-Bonilla, 671 F.3d 1036, 1049-50 (9th Cir. 2012) (requiring defendant who never had the opportunity to appear before an IJ to show prejudice by demonstrating plausible grounds for relief); and United States v. Ramos, 623 F.3d 672, 684 (9th Cir. 2010) (same).

In its prior ruling, the Court applied the standard the Ninth Circuit requires, regardless of the procedural posture of the defendant's CAT claim. The Court examined the evidence the defendant proffered, and determined that he failed to establish a prima facie showing of prejudice by demonstrating that it was plausible that, in 2011, an IJ would have found it more likely than not that, if removed to Honduras, the defendant would face torture in which the government would acquiesce. Rodriguez-Vasquez, 2013 WL 5755191, at *3-5.

The Court applied the correct legal standard in its previous Order. Accordingly, the Court finds that reconsideration is not warranted on this ground.

CONCLUSION

For the foregoing reasons and for good cause shown, and on the basis of the record before it, the Court hereby DENIES the defendant's motion for reconsideration. This Order resolves Docket No. 30.

IT IS SO ORDERED.


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