ORDER DENYING MOTION FOR RECONSIDERATION
SUSAN ILLSTON, 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.
On May 21, 2013, defendant Carlos Roberto Rodriguez Vasquez was charged in a single-count indictment with illegal reentry after deportation, in violation of 18 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. 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 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.
"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. ACandS, 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.
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).
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, 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. Id. 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 ...