United States District Court, D. Arizona
Jennifer G. Zipps United States District Judge
April 28, 2016, Magistrate Judge Bernardo P. Velasco issued a
Report and Recommendation (“R&R”) (Doc. 38)
in which he recommended denial of Defendant Eduardo Jose
Sergio Calderon-Andrade’s Motion to Dismiss Indictment,
which collaterally attacks the prior order of removal upon
which Defendant’s pending indictment for illegal
reentry under 8 U.S.C. § 1326(b)(2) relies. (Doc. 18.)
Defendant filed an Objection to the R&R on May 11, 2016
and the government timely responded. (Docs. 39, 42.) For the
reasons stated herein, the Court adopts the R&R and
denies Defendant’s Motion to Dismiss Indictment.
Court reviews de novo the objected-to portions of the
R&R. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The
Court reviews for clear error the unobjected-to portions of
the R&R. Johnson v. Zema Systems Corp., 170 F.3d
734, 739 (7th Cir. 1999); see also Conley v.
Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998). If the
Court rejects the credibility findings of the magistrate
judge, a de novo hearing is required. United
States v. Ridgway, 300 F.3d 1153, 1157 (9th Cir.
factual background contained in Magistrate Velasco’s
R&R (Doc. 38) is adopted as supplemented by the
additional facts stated in this Order.
a native and citizen of Mexico, received temporary lawful
permanent resident status on December 2, 1990. (Docs. 42-1
& 42-2.) On April 14, 1998, U.S. Border Patrol agents
arrested Defendant, who was using the alias Antonio
Andrade-Calderon, after he was found driving a U-Haul truck
loaded with 19 undocumented aliens. (Doc. 42-4.) On April 16,
1998, Defendant, still using his alias, pled guilty to
illegal entry under 8 U.S.C. § 1325 and was sentenced to
time served. (Doc. 42-6.)
on Defendant’s April 16, 1998 sentence, the United
States Immigration and Naturalization Service (INS) initiated
removal proceedings against Defendant under his alias. (Doc.
42-7.) The Notice to Appear (NTA) served on Defendant alleged
that he was a native of Mexico, not a citizen of the United
States, and that he entered the United States on April 13,
1998 without having been admitted or paroled by an
immigration officer. (Id.) On May 4, 1998, Defendant
appeared before an immigration judge (IJ) in Florence,
Arizona. (Doc. 42-8.) During the hearing, Defendant affirmed
that his name was Antonio Andrade-Calderon, admitted to the
allegations contained in his NTA and conceded that the charge
of removability was correct. (Id.) The IJ sustained
the charge of removability and denied Defendant’s
request for voluntary departure after Defendant admitted to
driving the U-Haul loaded with illegal aliens. (Doc. 42-8,
pgs. 30-35.) Defendant waived his right to appeal.
(Id., pg. 34.) Defendant was removed from the United
States pursuant to the May 4, 1998 order of removal.
26, 1998, Defendant, was arrested, under his true name, near
Nogales, Arizona, and charged with transportation of illegal
aliens for profit in violation of 8 U.S.C. § 1324. (Doc.
42-11.) After his arrest, Immigration Service discovered
Defendant’s prior use of an alias. (Doc. 42-12, pg. 3.)
On September 9, 1999, following Defendant’s conviction,
Defendant’s 1998 order of removal was reinstated;
Defendant was removed from the United States a second time on
May 25, 1999. (Doc. 42-13.)
is currently under indictment, charged with one count of
illegal re-entry in violation of 8 U.S.C. § 1326(b)(2),
for his alleged entry into the United States on August 31,
2015. (Doc. 7.) On February 18, 2016, Defendant filed the
pending Motion to Dismiss the Indictment, collaterally
attacking the validity of his 1998 removal proceedings. (Doc.
alien may not challenge the validity of a prior deportation
order unless the alien demonstrates: (1) he or she exhausted
any administrative remedies that may have been available to
seek relief against the order; (2) the proceeding 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. See §
1326(d)(3); United States v. Hinojosa-Perez, 206
F.3d 832, 835 (9th Cir. 2000). A predicate removal order
satisfies the condition of being “fundamentally
unfair” for purposes of § 1326(d)(3) when the
deportation proceeding violated the alien's due process
rights and the alien suffered prejudice as a result.
United States v. Arias-Ordonez, 597 F.3d 972, 976
(9th Cir. 2010).
de novo review, the Court finds that Defendant was afforded
due process during his 1998 removal proceedings and that
Defendant is not entitled to dismissal of the current charges
against him on this ground. Removal proceedings under the INA
are divided into two categories: those proceedings seeking to
remove inadmissible aliens, and those seeking to remove
aliens who are already in and admitted to the United States,
but who are nonetheless deportable. See Toro-Romero v.
Ashcroft, 382 F.3d 930, 936 (9th Cir. 2004) (citing 8
U.S.C. § 1229a(a)(3)). Because INS was not aware that
Antonio Andrade-Calderon was, in fact, a legal permanent
resident named Jose Sergio Calderon-Andrade, the 1998 removal
proceedings against Defendant sought his removal as an
inadmissible alien subject to the mandates of 8 U.S.C.A.
§ 1229a(c)(2). That provision of the INA provides, in
relevant part: “In the proceeding the alien has the
burden of establishing . . . by clear and convincing
evidence, that the alien is lawfully present in the United
States pursuant to a prior admission.” Thus, the burden
was on Defendant, not the government or the IJ, to prove that
he was an LPR. Because Defendant was arrested, charged and
convicted under an alias he provided, neither the government
nor the IJ were in possession of any information that would
cause them to believe Defendant was an LPR. Defendant was in
sole possession of that information, and he did not share it
when it was his burden to do so. Instead, Defendant admitted
to the IJ that he was not a United States citizen, that he
was a citizen of Mexico, and that he entered the United
States without being admitted or paroled. (Doc. 42-8, pgs.
contends that he did not receive due process because the IJ
failed to advise Defendant that he may be eligible for relief
from deportation, as required by 8 C.F.R. § 242.17.
Section 242.17 provides that an IJ must “inform the
respondent [in a deportation hearing] of his apparent
eligibility to apply for any benefits [of relief from
deportation] enumerated in this paragraph and ... afford him
an opportunity to make an application therefor during the
hearing.” However, the regulation only applies when a
respondent’s eligibility for relief is
“apparent.” “IJs are not expected to be
clairvoyant; the record before them must fairly raise the
issue: Until the [alien] himself or some other person puts
information before the judge that makes such eligibility
‘apparent, ’ this duty does not come into
play.” Moran-Enriquez v. I.N.S.,884 F.2d 420,
422 (9th Cir. 1989) ...