United States District Court, W.D. Texas, El Paso Division
A. TORRES, UNITED STATES MAGISTRATE JUDGE
the Court is Defendants' Motion to Dismiss (ECF No.
filed by Defendants on November 7, 2017, in the above-styled
and numbered cases. On November 20, 2017, the Government
filed its Response in Opposition to Defendants' Motion to
Dismiss ("Response") and the Court's November
2, 2017 Order (ECF No. 17). The Court held an evidentiary
hearing regarding the present motion to dismiss on November
27, 2017. Upon consideration of the motion, Response, and
oral argument, the Court DENIES
Defendants' Motion to Dismiss (ECF No. 13).
FACTS & PROCEDURAL HISTORY
five cases, which have been consolidated solely for the
purpose of the present motion to dismiss,  all involve
allegations that each of the Defendants illegally crossed the
border with a juvenile who they allege is their child or, in
the case of Defendant Natividad Zavala-Zavala,
grandchild. Defendants were arrested and charged with
the petty misdemeanor offense of improper entry by an alien
pursuant to 8 U.S.C. § 1325(a)(1). (ECF No. 6). The
juveniles accompanying Defendants were separated from
Defendants, processed as unaccompanied minors, and
transferred to the custody of the Office of Refugee
Resettlement ("ORR"). (Res., ECF No. 17, at 3);
see 6 U.S.C. § 279(g)(2); see also 8
U.S.C. § 1232(b)(3).
Elba Luz Dominguez-Portillo ("Dominguez-Portillo"),
who is a citizen of El Salvador, and a juvenile were
apprehended on October 21, 2017, by United States Customs and
Border Protection ("Border Patrol") while walking
on levee road north of the Rio Grande River, approximately
3.89 miles east of the Bridge of the Americas Port of Entry
("Bridge of the Americas"). (3:17-mj-4409-MAT,
Compl., ECF No. 6, at 2). During her initial appearance on
October 23, 2017, Dominguez-Portillo informed the Court that
the juvenile was her sixteen year-old daughter and stated
that since the time of their arrest Dominguez-Portillo had
not received any paperwork or information concerning the
whereabouts or well-being of her minor child.
(3:17-mj-4409-MAT, Initial App. Tr., ECF No. 14, at 9).
Maynor Alonso Claudino Lopez ("Claudino"), who is a
citizen of Honduras, and a juvenile were apprehended on
October 23, 2017, by Border Patrol while walking eastbound on
the north Rio Grande River levee road, approximately 4.6
miles east of the Bridge of the Americas. (3:17-mj-4456-MAT,
Compl., ECF No. 6, at 2). During his initial appearance on
October 24, 2017, Claudino informed the Court that the
juvenile was his eleven year-old son. (3:17-mj-4456-MAT,
Initial App. Tr., ECF No. 15, at 12). Claudino stated that
since the time of their arrest he had not received any
information concerning the whereabouts or well-being of his
minor child other than being informed by U.S. authorities
that his son would be with other children. Id.
Jose Francis Yanes-Mancia ("Yanes-Mancia"), who is
a citizen of Honduras, and a juvenile were apprehended on October
22, 2017, by Border Patrol while walking north across the Rio
Grande River, approximately 1.46 miles west of the Paso Del
Norte Port of Entry ("Paso Del Norte").
(3:17-mj-4461-MAT, Compl., ECF No. 6, at 2). During his
initial appearance on October 24, 2017, Yanes-Mancia informed
the Court that the juvenile was his fifteen year-old son.
(3:17-mj-4461-MAT, Initial App. Tr., ECF No. 14, at 11).
Yanes-Mancia stated that since the time of their arrest he
had not received any paperwork or information concerning the
whereabouts or well-being of his minor child, other than
being told that his son would be taken to an institution for
Natividad Zavala-Zavala ("Zavala-Zavala"), who is a
citizen of Honduras, and a juvenile were apprehended on October
22, 2017, by Border Patrol while crossing the Rio Grande
River approximately 1.46 miles west of the Paso Del Norte.
(3:17-mj-4462-MAT, Compl., ECF No. 6, at 2). During her
initial appearance on October 24, 2017, Zavala-Zavala
informed the Court that the juvenile was her seven year-old
grandson. (3:17-mj-4462-MAT, Initial App. Tr., ECF No. 14, at
10). Zavala-Zavala stated that she received a piece of paper
at the time of her arrest, though she had no idea what it
says, and that she had been provided with no further
information regarding the whereabouts and well-being of her
minor grandson. Id. at 10-11.
Blanca Nieve Vasquez-Hernandez
("Vasquez-Hernandez"), who is a citizen of El
Salvador, and a juvenile were apprehended on October 23,
2017, by Border Patrol while walking on the American levee,
approximately 1 mile east of the Ysleta Port of Entry.
(3:17-mj-4499-MAT, Compl., ECF No. 6, at 2). During her
initial appearance on October 26, 2017, Vasquez-Hernandez
informed the Court that the juvenile was her thirteen
year-old son. (3:17-mj-4499-MAT, Initial App. Tr., ECF No.
14, at 7). Vasquez-Hernandez stated she did not receive any
documents relating to her son subsequent to their arrest.
Id. at 8. She was only told that he would be sent to
a camp and that she would learn more information later,
though at the time of the initial appearance she had not
learned anything further. Id. at 7-8.
number of recent petty misdemeanor illegal entry cases before
this Court over the last several months, the Court has
repeatedly been apprised of concerns voiced by defense
counsel and by defendants (primarily from Central American
nations). The defendants, who claim to be parents of children
they were separated from at the time of their arrest,
reported to the Court limited and often non-existent lack of
information about the well-being and whereabouts of their
minor children. Because of the Court's concerns regarding
the possible legal impact of these issues on the criminal
proceedings of Defendants, the Court ordered briefing to
address these novel legal issues.
November 1, 2017, the Court held a status conference to
inform the parties that it was requesting briefing on issues
related to their minor relatives. At the hearing, counsel for
Defendants informed the Court that he anticipated filing a
dispositive motion requesting relief that would address the
issues concerning the Court. The Court issued its briefing
order (ECF No. 3) the following day, and on November 7, 2017,
Defendants filed their Motion to Dismiss. (ECF No. 13).
Significantly, neither party presented any witnesses nor
evidence during the evidentiary hearing held on November 27,
2017. After allowing for oral arguments by the parties at the
evidentiary hearing, the Court denied Defendants' pending
motion to dismiss and informed them a written opinion would
LAW & ANALYSIS
Summary of the Parties' Arguments
argue that their "separation from their minor children
during the children's immigration proceedings, and the
premature § 1325 charges against them, constitutes a
violation of the Flores Settlement and, most
importantly, a violation of the Due Process Clause with
respect to the criminal complaints." (Mot. To
Dismiss, ECF No. 13, at 2). They further argue that the
separation from the minor children is a form of compulsion
that renders their guilty pleas involuntary. Defendants
emphasize that they are not asking the Court to analyze the
strength of the Government's § 1325 cases against
them. Finally, Defendants allege that the Government's
actions is in all these regards constitutes outrageous
government conduct. As a remedy for these alleged violations,
Defendants seek: (1) an expeditious reunion with their minor
children pending the resolution of the children's
immigration proceedings; and (2) the dismissal of the
allegedly premature § 1325 complaints against them.
Government responds that it has properly charged Defendants
with criminal offenses, that the Court has jurisdiction over
these offenses, and that Defendants have not raised a
legitimate basis for dismissal of these valid charges. They
further argue that the Flores Settlement has no
applicability to criminal cases, and that Defendants have
failed to establish any Due Process violation. The
Government asserts that there has been no coercion, and in
fact no guilty pleas have even been entered. Further, the
Government argues that even if coercion were proven, the
remedy would not be to dismiss the charges, but rather to go
to trial. Underpinning these arguments is the
Government's assertion that it is not required by law to
provide any information regarding the well-being and
whereabouts of the minor children of the defendant-parents
while the parents' criminal cases are pending.
The Government's Criminal Jurisdiction in These
18 U.S.C. § 3231 provides that the "district courts
of the United States shall have original jurisdiction, . . .
of all offenses against the laws of the United States."
18 U.S.C. § 3231. Improper entry by means of an improper
time or place is a petty misdemeanor federal offense that
requires the Government to prove that the defendant: (1) was
an alien; (2) who entered or attempted to enter the United
States; and (3) entered or attempted to enter at a time or
place other than as designated by immigration officers. 8
U.S.C. § 1325(a)(1). The Government must also establish
that venue is proper in the Western District of Texas.
See Fed. R. Crim. P. 18.
Rule of Criminal Procedure 12 provides that a "party may
raise by pretrial motion any defense, objection, or request
that the court can determine without a trial on the
merits." Fed. R. Crim. P. 12(b)(1). A party may argue
that a court lacks jurisdiction at any time. Id.
12(b)(2). However, the following defenses, objections, and
requests must be raised in a pretrial motion if the basis for
the motion is then reasonably available and can be determined
without a trial on the merits:
A. a defect in instituting the prosecution, including:
i. improper venue;
ii. preindictment delay;
iii. a violation of the constitutional right to a speedy
iv. selective or vindictive prosecution; and
v. an error in the grand-jury proceeding or preliminary
B. a defect in the indictment or information, including:
i. joining two or more offenses in the same count
ii. charging the same offense in more than one count
iii. lack of specificity;
iv. improper joinder; and
v. failure to state an offense;
C. suppression of evidence;
D. severance of charges or defendants under Rule 14; and
E. discovery under Rule 16
Id. 12(b)(3). The phrase "including" in
Rule 12(b)(3)(A-B) suggests this list is not exhaustive.
Defendants do not specifically assert any of the above
defenses, objections, or requests and, if anything,
acknowledge that the criminal complaints are properly before
the Court and sufficiently plead by emphasizing that they are
not asking the Court to analyze the strength of the
Government's § 1325 cases against them.
The Outrageous Government Conduct Doctrine
argue that dismissal is warranted based on outrageous conduct
by the Government. The Supreme Court discussed the outrageous
government conduct doctrine in United States v.
Russell, 411 U.S. 423 (1973), and later in Hampton
v. United States, 425 U.S. 484 (1976). In
Russell, the Government conduct challenged as
outrageous involved a law enforcement official who provided a
legally obtainable chemical that was a necessary component to
a criminal drug manufacturing enterprise. 411 U.S. at 431-32.
The Supreme Court held that a criminal prosecution could
nonetheless proceed. Id. at 436. While finding the
conduct not sufficiently outrageous to warrant dismissal it
stated that it "may some day be presented with a
situation in which the conduct of law enforcement agents is
so outrageous that due process principles would absolutely
bar the government from invoking judicial processes to obtain
a conviction." Id. at 4.31-32; see also
Hampton, 425 U.S. at 488-91 (restating Russell
dictum). While it appears the doctrine is generally
considered in the context of entrapment by law enforcement
officials, United States v. Mouton, No. 11-48, 2013
WL 3187265, at *3 (E.D. La. June 20, 2013), it has been
analyzed in contexts not involving entrapment. See, e.g.,
United States v. Chavez-Betancourt, 447 Fed.Appx. 553,
557 (5th Cir. 2011) (analyzing the application of the
outrageous government conduct doctrine in a case alleging
forgery of a chain of custody receipt by a government
limitations of the Due Process Clause of the Fifth Amendment
come into play only when the Government activity in question
violates some protected right of the Defendant."
Hampton, 425 U.S. at 490. Even then, Government
conduct does not warrant dismissal of criminal charges
"unless it is so outrageous that it violates the
principle of fundamental fairness under the due process
clause of the Fifth Amendment." United States v.
Posada Carriles, 541 F.3d 344, 353 (5th Cir. 2008)
(quoting United States v. Asibor, 109 F.3d 1023,
1039 (5th Cir. 1997)) (internal quotation marks omitted).
"However, a due process violation will be found only in
the rarest and most outrageous circumstances."
United States v. Nissen, 928 F.2d 690, 693 (5th Cir.
1991) (citation omitted). The Government's conduct must
"shock the most cynical among us." United
States v. Rodriguez, 603 Fed.Appx. 306, 312 (5th Cir.
2015) (citation omitted). "Thus, a defendant who asserts
the defense of outrageous government conduct has an extremely
high burden of proof." Asibor, 109 F.3d at
circumstances warranting the application of the outrageous
government conduct doctrine are not generally well-defined by
case law. Courts have noted that there appears to be only one
circuit court case, United States v. Twigg, 588 F.2d
373 (3d Cir. 1978),  in which a conviction has been
invalidated on Russell-Hampton grounds. See
United States v. Collins, 972 F.2d 1385, 1396 n. 10 (5th
Cir. 1992); see also United States v. Valdez, No.
6:06-60074-07, 2011 WL 7143468, at *50 n. 28 (W.D. La. Dec.
30, 2011), report and recommendation adopted, No.
06-60074, 2012 WL 359726 (W.D. La. Jan. 31, 2012). At least
one court also questions the continuing validity of the
Russell-Hampton doctrine. See Valdez, 2011
WL 7143468, at *50 n. 28 (collecting cases). The outrageous
government conduct doctrine as articulated in these two
Supreme Court cases nevertheless remains a recognized
doctrine. Significantly, and decisively for the relief sought
by Defendants in the instant motion, dismissal on such
grounds is an extremely high hurdle which has yet to be
reached in any reported Fifth Circuit case.
the Court must determine whether the Government has violated
a protected right of Defendants and, if it has, whether that
violation was sufficiently outrageous to warrant a dismissal
of the charges, as sought by Defendants.
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