United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matter before the Court is the motion to dismiss Count Two of the Indictment and to compel discovery (ECF No. 13) filed by Defendant Ontoniel Garcia-Villa.
On May 6, 2002, Defendant was ordered removed to Mexico. Defendant was formally removed again on October 30, 2006; November 4, 2006; and June 13, 2013. Immigration records show that between 2002 and 2014, Defendant was apprehended in the United States on approximately 21 occasions and returned to Mexico.
On June 2, 2003, Defendant was sentenced to 18 months in custody for transportation of illegal aliens in violation of 8 U.S.C. § 1324 in the United States District Court for the Southern District of California.
On August 6, 2007, Defendant was sentenced to 24 months in custody for transportation of illegal aliens in violation of 8 U.S.C. § 1324 in the United States District Court for the Southern District of California.
On June 7, 2013, Defendant was arrested and charged with a violation of 8 U.S.C. § 1326 in the United States District Court for the Southern District of California. On January 9, 2014, Defendant pled guilty to a Superseding Information charging him with misdemeanor illegal entry in violation of 8 U.S.C. § 1325. Defendant received a sentence of 6 months in custody. Following his custodial sentence, Defendant was placed in expedited removal proceedings under 8 U.S.C. § 1225.
On January 15, 2014, Immigration Enforcement Agent Henry Jurgilewicz Jr. conducted the expedited removal proceedings. Agent Jurgilewicz testified that he conducts expedited removal proceedings as a part of his employment as an Immigration Enforcement Agent with the Department of Homeland Security. The agent testified that he performs expedited removal proceeding on a daily basis and that the individuals subject to the proceedings are often incarcerated at the Metropolitan Correctional Center or other custodial facilities. The agent testified that he did not have specific recollection of Defendant's proceeding on January 15, 2014 but identified the documents that he prepared during the expedited proceeding. The agent testified that his practice and procedure is to ask each individual subject to removal at the beginning of the proceeding what language the individual prefers. The agent testified that he calls Certified Language International and put an interpreter on speaker phone during the proceeding when the individual indicates that he or she wants to proceed in the Spanish language or the he feels that the individual does not understand the proceedings.
The agent testified that a Spanish language interpreter was employed at the Defendant's expedited hearing on January 15, 2014 pursuant to his practice and procedure. The agent testified that he documented the use of a Spanish language interpreter in the records of Defendant's expedited hearing. Specifically, the agent testified that the I-831 report indicates that "all questions were asked in Spanish through Interpreter SPRF with Certified Languages international" (ECF No. 17-5 at 3) and that the I-867A indicates that the interview was in the Spanish language with interpreter "SPRF" employed by "CLI" (ECF No. 17-5 at 5-7).
Certified Language International provides interpreter services for immigration proceedings, and "SPRF" refers to the particular interpreter who provided telephonic Spanish language translation during the expedited removal proceedings. Billing records from Certified Language International show that a Spanish language interpreter translated for Agent Jurgilewicz on January 15, 2014 at 9:52 a.m. for 19 minutes. (ECF No. 17-6 at 3).
The Record of Sworn Statement in Proceedings I-867A indicates that the Agent Jurgilewicz took a sworn statement from Defendant in the Spanish language with interpreter "SPRF" employed by "CLI" on January 15, 2014. (ECF No. 17-5 at 5-7). In the sworn statement, Defendant stated that he was a Mexican citizen with no legal documents allowing him to enter into the United States. (ECF No. 17-5 at 6). Agent Jurgilewicz signed a Determination of Inadmissibility I-860 finding that Defendant was inadmissible and subject to removal. (ECF No. 17-5 at 8). An Immigration Officer and a supervisor issued an Order of Removal under the expedited removal statute, 8 U.S.C. §1225. The Order of Removal was served on Defendant and he was removed on January 15, 2014. (ECF No. 17-5 at 8, 10).
On April 1, 2014, Defendant was apprehended by a border patrol agent approximately twelve miles east of the Otay Mesa Port of Entry and six miles north of the international border. Defendant stated that he was a citizen of Mexico with no documents allowing him to enter the United States.
On May 20, 2014, the grand jury returned an indictment charging in Count One that Defendant unlawfully entered the United States in violation of 8 U.S.C. § 1325 and in Count Two that Defendant is an alien, found in the United States who ...