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United States v. Enriquez-Venzor

United States District Court, D. Arizona

July 12, 2019

United States of America, Plaintiff,
v.
Jaime Enriquez-Venzor, Defendant.

          REPORT AND RECOMMENDATION

          ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE

         This case arises from the arrest of Defendant Jaime Enriquez-Venzor on or about October 17, 2018 in Naco, Arizona by United States Border Patrol agents. When the agents arrested Defendant, he did not have proper immigration documents and had not received the express consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission to the United States after his previous removal. The Government subsequently filed a Criminal Complaint on October 18, 2018, alleging a violation of § 1326(a) and (b) of Title 8 of the United States Code. A federal grand jury then indicted Defendant on the charge of violating 8 U.S.C. § 1326(a), enhanced by 8 U.S.C. § 1326(b), for Illegal Reentry after having been denied admission, excluded, deported, and removed from the United States on November 6, 2017.

         Pending before the Court is Defendant's Motion to Dismiss the Indictment. (Doc. 22). Defendant collaterally attacks his 2007 deportation order upon which the current charge is based. Defendant alleges that the underlying deportation proceedings that serve as predicate to the current charge violated his Fifth Amendment Due Process rights because: (1) immigration officials failed to explain to Defendant that he was in formal removal proceedings and failed to notify him of the charge of inadmissibility; (2) Defendant was not served with Form I-860 for his signature acknowledging receipt; (3) the I-867B indicated only one of the four pages of Defendant's sworn statement was reviewed with him; and (4) immigration officials failed to inform him that he could request to withdraw his application for admission. Defendant further argues that these violations prejudiced his 2007 expedited removal proceedings. The Government's Response to Defendant's Motion to Dismiss the Indictment argues that no such due process violations occurred, and that even if they did, the violations did not prejudice Defendant. (Doc. 32).

         The Court concludes that all of Defendant's arguments regarding due process violations are without merit. However, even if Defendant's due process rights were violated, there is no evidence that Defendant suffered any prejudice as a result of said violations. Therefore, the undersigned recommends that the District Court deny the motion to dismiss the indictment.

         FACTUAL AND PROCEDURAL BACKGROUND

         Defendant is a citizen of Mexico. (Doc. 32 at 1:24). On February 27, 2007, he attempted to enter the United States from Mexico at the Paseo del Norte Port-of-Entry in El Paso, Texas. (Doc. 22 at 3:3-5; Doc. 22-1 Ex. 4 [Enriquez-Venzor Decl.] at ¶ 6). In order to gain entry, Defendant presented immigration officials with a Form DSP-150, Laser Visa, bearing the name of another individual but including a picture of the Defendant. (Doc. 22 at 3:5-6; Doc. 22-1 Exs. 1, 2 at 2). Upon suspecting the document was fraudulent, immigration officials placed Defendant in secondary inspection and then expedited removal proceedings. (Doc. 22 at 3:7-8).

         Defendant was questioned by Customs and Border Protection Officer Andres Arroyo, Jr. (Officer Arroyo), in his native Spanish language.[1] (Doc. 22-1 at 1; Doc. 32 at 2:3-6). The interview was recorded on Form I-867A, Record of Sworn Statement in Proceedings under § 235(b)(1) of the Act, and Defendant initialed all four pages of the form.[2] (Doc. 22-1 Ex. 2 at 1-4). Form I-867A includes a preliminary section where the officer explains the defendant's rights, as well as “the purpose and consequences of [the] interview.” Id. at 1. This admonition states:

I am an officer of the United States Immigration and Naturalization Service. I am authorized to administer the immigration laws and to take sworn statements. I want to take your sworn statement regarding your application for admission to the United States. Before I take your statement, I also want to explain your rights, and the purpose and consequences of this interview.
You do not appear to be admissible or to have the required legal papers authorizing your admission to the United States. This may result in your being denied admission and immediately returned to your home country without a hearing. If a decision is made to refuse your admission into the United States, you may be immediately removed from this country, and if so, you may be barred from reentry for a period of five years or longer.
This may be your only opportunity to present information to me and the Immigration and Naturalization Service to make a decision. It is very important that you tell me the truth. If you lie or give misinformation, you may be subject to criminal or civil penalties, or barred from receiving immigration benefits or relief now or in the future.
Except as I will explain to you, you are not entitled to a hearing or review. U.S. law provides protection to certain persons who face persecution, harm or torture upon return to their home country. If you fear or have a concern about being removed from the United States or about being sent home, you should tell me so during this interview because you may not have another chance. You will have the opportunity to speak privately and confidentially to another officer about your fear or concern. That officer will determine if you should remain in the United States and not be removed because of that fear.
Until a decision is reached in your case, you will remain in the custody of the Immigration and Naturalization Service.
Any statement you make may be used against you in this or any subsequent administrative proceeding.

Id.

         In response to whether Defendant understood the explanation provided by Officer Arroyo, Defendant responded “[y]es.”[3] Id. When Officer Arroyo questioned Defendant about the fraudulent document used for attempted entry into the United States, Defendant admitted that he bought the Laser Visa for $5, 000 in Tijuana, Mexico from an unknown individual. (Doc. 22 at 3:7-9; Doc. 22-1 Ex. 2 at 3; Doc. 32 at 2:18-19). Defendant went on to acknowledge that he knew he could not legally enter the United States and that on four previous occasions he had been apprehended by Border Patrol before being sent back to Mexico without formal deportation.[4] Id. at 3. However, on the final page of the sworn statement, Form I-867B, Jurat for Record of Sworn Statement in Proceedings under Section 235(b)(1), it indicates that Defendant “read (or have had read to me) this statement, consisting of 1 pages (including this page).” Id. at 4. This is despite the fact that the entirety of the form consisted of a total of four pages. Id. at 1-4. Defendant signed the form under the one-page acknowledgement. Id. at 4.

         As a result of the interview, immigration officials issued a Form I-860, Notice and Order of Expedited Removal, indicating they found Defendant inadmissible under § 212(a)(6)(C)(i) of the Immigration and Nationality Act (“INA”) and ordered him removed. (Doc. 22-1 Ex. 1 at 1). Officer Arroyo signed the form's Certificate of Service indicating he served the original copy of the form to Defendant. Id. However, Defendant did not sign the back of this form acknowledging receipt as required by law. (Doc. 22 at 4:6-8). Finally, officials also issued Form I-296, Notice to Alien Ordered Removed/Departure Verification, indicating that Defendant was barred from entering the United States for 5 years. (Doc. 22-1 Ex. 3 at 1).[5] The form was signed by both Officer Arroyo and Defendant. Id.

         Defendant later returned to the United States and was convicted of Dealing in Methamphetamine in Marion County Superior Court, Indianapolis, Indiana on June 2, 2015, and sentenced to 20 years of imprisonment with 18 years suspended. (Doc. 32 at 3:15-18). The 2007 expedited order of removal was reinstated and Defendant was removed from the United States to Mexico on September 2, 2016. Id. at 3:18-20. Defendant was again apprehended in the United States on December 18, 2016, and on June 14, 2017 was convicted of Reentry of a Removed Alien (8 U.S.C. § 1326(a)/(b)) and sentenced in the United States District Court for the District of New Mexico to 12 months and one day imprisonment and three years of unsupervised release. Id. at 3:21-25. Defendant was removed from the United States to Mexico on November 6, 2017. Id. at 4:1-2.

         On October 17, 2018, Border Patrol agents apprehended Defendant five miles north of the Naco Port-of-Entry in Arizona. Id. at 4:4-9. Defendant claimed to be a Mexican citizen and admitted that he was in the United States illegally. Id. at 4:10-11. On October 18, 2018, the Government filed its Criminal Complaint against Defendant in the United States District Court for the District of Arizona. (Doc. 1). The Government charges Defendant with violations of § 1326(a) and (b)(1) of Title 8 of the United States Code. Id. The Complaint alleges that Border Patrol agents found Defendant “in the United States at or near Naco, Arizona, without the proper immigration documents” after having been “lawfully denied admission, excluded, deported and removed from the United States through Del Rio, Texas” on November 6, 2017. Id. A federal grand jury then returned a one-count indictment against Defendant for a violation of 8 U.S.C. § 1326(a) (enhanced by 8 U.S.C. § 1326(b)(1)) for Illegal Reentry on November 14, 2018. (Doc. 7). Defendant entered a plea of not guilty on November 30, 2018.

         Defendant filed the pending Motion to Dismiss the Indictment on March 23, 2019. (Doc. 22). Defendant seeks to collaterally attack his 2007 removal order, which serves as the predicate to the present charges, and argues that due process violations prejudiced his 2007 expedited removal proceedings. Id. at 1. Specifically, Defendant argues that due process violations occurred when immigration officials failed to: explain that he was in formal removal proceedings and what his charge of removability was; serve Defendant with Form I-860 for his signature on the reverse side of the form acknowledging receipt; review his sworn statement as evidenced by the I-867B, Jurat for Recorded Statement, only indicating one of the four pages was reviewed; and inform Defendant that he could request to withdraw his application for admission. Id. at 8:11-19. Further, Defendant argues that these due process violations prejudiced him because it was plausible that immigration officials would have granted a request to withdraw his application for admission. Id. at 9:14-19.

         The Government filed its Response to Defendant's Motion to Dismiss the Indictment on April 9, 2019. (Doc. 32). The Government argues that Defendant's 2007 removal did not violate his due process rights and is valid. Id. at 4:23. Specifically, the Government argues that the agents complied with the relevant regulations and that the failure of Defendant to sign the back of the Form I-860 was a mere “technical violation” that does not rise to a due process violation. Id. at 8:9-16. Additionally, the Government argues that even if Defendant meets his burden to establish a due process violation, there was no plausible relief available to Defendant at the time of his initial deportation and he therefore suffered no prejudice related to the 2007 expedited removal proceedings. Id. at 11:4-8.

         Defendant filed a Reply to the Government's Response to the Motion to Dismiss the Indictment on April 16, 2019. (Doc. 35). Defendant argues that the immigration officers did not adequately comply with the regulations and statutes governing expedited removal proceedings and that such failures rise to the level of a due process violation. Id. at 3:6-10. Defendant also reiterates his argument that there was plausible relief available to him in the form of withdrawal of his application for admission. Id. at 5:20-22.

         THE EVIDENTARY HEARING

         An evidentiary hearing on the motion was held on June 11, 2019. The defense called no witnesses. The Government called one ...


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