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United States v. Garcia-Esquivel

United States District Court, W.D. Texas, El Paso Division

October 28, 2019




         On this day, the Court considered Defendant Oscar Garcia-Esquivel's [hereinafter “Defendant”] “Motion to Dismiss Indictment” (ECF No. 32) [hereinafter “Motion”], filed on September 4, 2019, and the Government's “Response to Defendant's Motion to Dismiss Indictment” (ECF No. 38) [hereinafter “Response”], filed on September 27, 2019, in the above captioned cause. After due consideration, the Court is of the opinion that Defendant's Motion should be denied for the reasons that follow.


         Defendant is a citizen of Mexico with an extensive criminal history. He was convicted and subsequently sentenced for illegal reentry pursuant to 8 U.S.C. § 1326 on August 2, 2002, December 16, 2005, April 19, 2010, November 19, 2013, and June 17, 2016. Resp. 2-3. On October 6, 2006, Defendant was convicted of forgery pursuant to Arizona law, and sentenced to thirty months imprisonment. Resp. 3. He served a sentence for narcotics possession pursuant to Arizona law concurrently with his forgery sentence. Id.

         After serving a sentence of 36 months for his most recent illegal reentry conviction, Defendant was released to an Immigration and Customs Enforcement [hereinafter “ICE”] Detention Center and placed in removal proceedings. Mot. 1; Resp. 3. On October 29, 2018, Asylum Officer Rachael Maer [hereinafter “AO”] conducted a reasonable fear interview with Defendant to determine whether he had a fear of persecution or torture in his home country of Mexico. Mot. 1.

         The AO summarized that Defendant “was afraid to return to Mexico because [he] ha[d] been threatened by both the Aztecas and La Linea that if [he] did not work for them they would make [him] disappear.” Mot. Ex. 2 at 4. Defendant claimed that in 2015, members of these gangs killed his brother, and he “believe[s] this is because [he] did not join them.” Id. Furthermore, Defendant testified that he has been “threatened and beaten . . . by the police in 2004 and 2016.” Id. Additionally, Defendant claims La Linea attempted to recruit him beginning in 2004. Id.

         Based on the interview, the AO determined Defendant had a reasonable fear of persecution or torture. Mot. 1-2. The AO completed a Form I-863, “Notice of Referral to Immigration Judge, ” setting a hearing before an immigration judge [hereinafter “IJ”]. Mot. Ex. 3 at 1. The notice indicated Defendant could be represented by counsel, attached a list of free legal services, and included written notice of evidence to be provided to the IJ. Id. at 2. The notice also indicated that the IJ would review Defendant's matter “for a determination in accordance with 8 C.F.R. § 208.31(e).” Id. at 1.

         Section 208.31(e) entitles an alien in removal proceedings with a reasonable fear of persecution or torture in their home country to a review of a “request for withholding of removal.” 8 C.F.R. § 208.31(e). Pursuant to § 208.31(e), a Defendant may claim withholding of removal based on the Convention Against Torture [hereinafter “CAT”] or § 241(b)(3)[1] of the Immigration and Nationality Act. Id. §§ 208.16(b), (c). In addition, an appeal of an IJ's decision “shall lie to the Board of Immigration Appeals.” Id. § 208.31(e).

         In contrast to § 208.31(e), § 208.31(f) provides for review of an AO's determination that an alien has no reasonable fear of torture or persecution in their home country. The provision only requires that “the asylum officer shall inform the alien in writing of the decision and shall inquire whether the alien wishes to have an immigration judge review the negative decision.” Id. § 208.16(f). The regulation does not provide for appeal to the Board of Immigration Appeals [hereinafter “BIA”], or allow for claims pursuant to CAT.

         Also on October 29, 2018, ICE's Asylum Office Director compiled a “Memo of Adverse Information” regarding Defendant. Resp. Ex. 3 at 3. The memo indicated that the “applicant possibly could be barred from withholding of removal” because he had been “Convicted of [a] Particularly Serious Crime.” Id. Specifically, the memo explained that “the applicant has been convicted of a number of felonies and has been identified as a gang member.” Id.

         On January 18, 2019, the IJ conducted a review of Defendant's reasonable fear interview. Mot. 2. Although the AO's I-863 form indicated Defendant had a reasonable fear of persecution or torture, the IJ stated, “[t]he Government determined that you do not have a credible fear of harm in your home country . . . and you have asked for that decision to be reviewed by the Court, is that correct?” Mot. Video Ex., Track 1 at 1:10. With the assistance of a translator, Defendant responded, “Yes, sir.” Id. at 1:15. The IJ did not conduct proceedings related to CAT, a remedy available to Defendant pursuant to 8 C.F.R. § 208.31(e). Instead, the IJ reviewed Defendant's interview with the AO, and noted that based on a fear of gang violence Defendant could not obtain withholding of removal on account of “[y]our race, your religion, your nationality, your membership in a particular social group, or your political opinion.” Mot. Video Ex., Track 4 at 1:41.

         After the hearing, the IJ issued an “Order of the Immigration Judge, ” indicating that the “decision of the immigration officer is: . . . [a]ffirmed, and the case is returned to the DHS for removal of the alien.” Mot. Ex. 4. at 1 (emphasis added). The order reads “[t]his is a final order” and “[t]here is no appeal available.” Id. On January 28, 2019, ICE issued a “Warrant of Removal/Deportation” for Defendant. Mot. Ex. 5 at 1. Therein, ICE indicated that the IJ's order was final, and ICE subsequently deported Defendant on February 4, 2019, at the Hidalgo, Texas port of entry. Id. at 1-2.

         On or about April 2, 2019, a Border Patrol Agent found Defendant attempting to reenter the United States in Fort Hancock, Texas, and arrested him. Criminal Compl., Apr. 5, 2019, ECF No. 1. On May 1, 2019, a Grand Jury returned an indictment charging Defendant with Illegal Re-Entry after Deportation or Removal, in violation of 8 U.S.C. § 1326(a). Indictment, May 1, 2019, ECF No. 11 at 1. The indictment alleges that “an alien, who had previously been excluded, deported, and removed from the United States on or about February 4, 2019, attempted to enter, entered, and was found in the United States.” Id.

         On May 8, 2019, Defendant entered a “Waiver of Personal Appearance at Arraignment and Entry of Plea of Not Guilty” (ECF No. 15). Defendant subsequently filed his Motion to Dismiss pursuant to 8 U.S.C. § 1326(d), collaterally attacking the “Warrant of Removal/ Deportation” entered on January 28, 2019. Mot. 1.


         A defendant in an illegal reentry case may collaterally attack an indictment's underlying removal order. United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987). In interpreting Mendoza-Lopez, the Fifth Circuit formulated a three-prong test to challenge the prior removal order. See, e.g., United States v. Lopez-Vasquez, 227 F.3d 476, 483 (5th Cir. 2000). Specifically, an alien must establish: “(1) the prior hearing was fundamentally unfair; (2) the hearing effectively eliminated the right of the alien to challenge the hearing by means of judicial review of the order; and (3) the procedural deficiencies caused the alien actual prejudice.” Id.

         The Fifth Circuit's test “effectively was codified” in 8 U.S.C. § 1326(d). United States v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002). The statute states an alien must demonstrate the following in a collateral attack: “(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.” Id. An alien must show that all three prongs of the test are met; if she ...

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