United States District Court, S.D. California
ORDER DENYING MOTION TO DISMISS INDICTMENT DUE TO INVALID DEPORTATIONS
BARRY TED MOSKOWITZ, Chief District Judge.
Defendant has filed a motion to dismiss the indictment in this case on the ground that his prior deportations were invalid. Previously, the Court held that Defendant's March 28, 2006 and December 1997 removals were valid. The issue now before the Court is whether Defendant's expedited removals on January 16, 2013 and June 22, 2013 were valid. For the reasons discussed below, the Court finds that the expedited removals were valid and therefore DENIES Defendant's motion to dismiss the indictment.
I. GOVERNING LAW
To sustain a collateral attack under 8 U.S.C. § 1326(d), a defendant must demonstrate that (1) he exhausted all administrative remedies available to him to appeal his removal order; (2) the underlying removal proceedings at which the order was issued improperly deprived him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. United States v. Ubaldo-Figueroa , 364 F.3d 1047, 1048 (9th Cir. 2004). An underlying deportation order is "fundamentally unfair" if (1) the defendant's due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects. Id . When the alleged defect in the deportation proceedings consists of the IJ's failure to inform the defendant regarding his possible eligibility for relief from deportation, in order to establish prejudice, the defendant must only show that he had a plausible ground for relief from deportation. United States v. Arce-Hernandez , 163 F.3d 559, 563 (9th Cir. 1998).
An alien cannot collaterally attack an underlying deportation order if he validly waived the right to appeal that order. United States v. Arrieta , 224 F.3d 1076, 1079 (9th Cir. 2000). However, the exhaustion requirement of 8 U.S.C. 1326(d) "cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process." United States v. Muro-Inclan , 249 F.3d 1180, 1183 (9th Cir. 2001). "[A] waiver is not considered and intelligent when the record contains an inference that the petitioner is eligible for relief from deportation, but the Immigration Judge fails to advise the alien of this possibility and give him the opportunity to develop the issue." Id. at 1182 (internal quotation marks omitted). "Even in expedited removal proceedings... an alien's waiver of the right to appeal must be both considered and intelligent in order to be valid." United States v. Reyes-Bonilla , 671 F.3d 1036, 1043 (9th Cir. 2012).
Defendant challenges both his January 16, 2013 and June 22, 2013 expedited removals. As discussed below, the Court finds that both of the expedited removals were valid.
A. January 16, 2013 Expedited Removal
Defendant challenges his January 16, 2013 expedited removal on the grounds that (1) he was placed into expedited removal proceedings even though he claimed a fear of torture and persecution upon his arrest; (2) he was not advised of his eligibility for relief under the Convention Against Torture ("CAT") or his apparent eligibility for a U-Visa or asylum; (3) he was not advised of his eligibility for withdrawal of his application for admission; and (4) he did not sign the back of the Form I-860, Notice and Order of Expedited Removal.
The Court holds that Defendant was not deprived of his due process rights by being placed into expedited removal proceedings or by not being advised of his eligibility for CAT, U-Visa, or asylum relief. As pointed out by Defendant, aliens who claim a fear of persecution or torture are not eligible for expedited removal proceedings. 8 U.S.C. § 1225(b)(1)(ii). However, at the time of the expedited removal proceedings, Defendant stated that he had no fear of persecution. The Jurat for Record of Sworn Statement (Gov't Ex. 9A), signed by Defendant on January 16, 2003, reflects that Defendant answered "No" to the questions "Do you have any fear or concern about being returned to your home country or being removed from the United States?" and "Would you be harmed if you are returned to your home country or country of last residence?"
Defense counsel questions the reliability of the Sworn Statement and Jurat attached thereto on the ground that the form does not indicate which, if any, questions were translated into Spanish and does not identify the interpreter. Defense counsel points out that upon Defendant's arrest on July 26, 2012, Defendant stated that he did have a fear of persecution or torture should he be returned to Mexico. (Def. Exs. D, E.)
Although the Sworn Statement and Jurat dated January 16, 2003 suffer from technical defects, the Court finds that Defendant was asked the question regarding whether he feared torture or persecution in Spanish and answered "No." Henry Jurgilewicz, Jr, the ICE Agent who took Defendant's statement, testified at an evidentiary hearing on November 26, 2013 and December 3, 2013. Jurgilewicz testified that if a person claims fear, he does not proceed with the expedited removal, but instead arranges for a credible fear interview to take place. (Tr. of 11/26/13 Hr'g at 22:24-11.) Jurgilewicz explained that sometimes individuals who initially claim fear change their minds because they do not wish to be incarcerated any longer and wish to be removed. (Id. at 23:16-20.) When he writes on the form "English/Spanish, " as in this case, that means that he talked to the individual in English as well as in Spanish through a Spanish-speaking agent. (Id. at 24:15-25:7.) According to Jurgilewicz, it would have been his practice to have the questions regarding torture and persecution translated into Spanish, even if the subject spoke some English, because Jurgilewicz knows those questions are very important and wants to make sure the subject understands them. (Tr. of 2/3/13 Hr'g at 34:2-10; 47:4-10.)
The Court found Agent Jurgilewicz to be credible and made a finding of fact that Defendant stated on January 16, 2013, that he did not have a fear of being returned to Mexico (Tr. of 2/3/13 Hr'g at 62:3-4; 64:3-5.) The Court explained that whatever fear Defendant may have had in July 2012 may very well have dissipated by January 2013. (Id. at 62:18-19.) Indeed, in July 2013, Defendant again stated that he did not have any fear of being returned to Mexico. (Gov't Exs. T, U.)
Given that Defendant himself told Agent Jurgilewicz that he did not have any fear of torture or persecution, the Court concludes that there was no due process violation in continuing with the expedited removal and not advising Defendant regarding potential CAT, asylum, or U-Visa relief. Defendant has not provided any authority for the proposition that once an alien claims fear, a credible fear determination must be made and the alien cannot be placed in expedited removal proceedings, even if the alien subsequently states that he has no fear of being returned to his country. Indeed, an alien who claims that he has no fear but is nonetheless taken out of expedited removal proceedings and placed in asylum proceedings could complain that he is being ...