United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE
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.
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.
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
AND PROCEDURAL BACKGROUND
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).
was questioned by Customs and Border Protection Officer
Andres Arroyo, Jr. (Officer Arroyo), in his native Spanish
language. (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. (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
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.
response to whether Defendant understood the explanation
provided by Officer Arroyo, Defendant responded
“[y]es.” 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. 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.
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). The form was signed by both
Officer Arroyo and Defendant. Id.
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.
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.
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.
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
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.
evidentiary hearing on the motion was held on June 11, 2019.
The defense called no witnesses. The Government called one