United States District Court, D. Colorado
A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant's Motion to
Dismiss the Indictment [Docket No. 33]. On August 21, 2019,
defendant Juan Vasquez-Vasquez was indicted on one count of
illegal reentry in violation of 8 U.S.C. § 1326(a).
Docket No. 1 at 1.
1326(a) of Title 8 of the United States Code provides that
any person who “has been denied admission, excluded,
deported, or removed or has departed the United States while
an order of exclusion, deportation, or removal is
outstanding, and thereafter . . . enters, attempts to enter,
or is at any time found in, the United States . . . shall be
fined under Title 18, or imprisoned not more than 2 years, or
both.” 8 U.S.C. § 1326(a). On December 6, 2019,
defendant moved to dismiss the indictment on the basis that
the underlying deportation order on which his criminal charge
is based is invalid. Docket No. 33 at 5, 9.
29, 2011, defendant was taken into custody by Customs and
Border Protection (“CBP”) after a traffic stop in
Stanfield, Arizona. Docket No. 36 at 1; Docket No. 36-1. The
field processing form, completed on the day of arrest,
indicates that defendant entered the United States on June
21, 2011 at 6:00 a.m. Docket No. 36-1.
1, 2011, a border patrol agent interviewed defendant under
oath. Docket No. 36 at 1; Docket No. 33 at 1. Before the
interview, defendant was informed, in Spanish, that
“[t]his may be [his] only opportunity to present
information to . . . the Department of Homeland Security
[(“DHS”)] to make a [removal] decision” and
that it was “very important that [defendant] tell [the
agent] the truth.” Docket No. 33-1 at 5. The agent told
defendant that he was not entitled to a hearing or review of
the deportation proceedings. Id. He also informed
the defendant that, if he had any fear or concern about being
removed from the United States or about being returned to
Mexico, he should inform the agent during the interview
because he “may not have another chance.”
Id. After the advisement, the agent asked defendant
if he understood what was told to him. Id. The
defendant said yes. Id. He was then asked if he had
any questions. Id. The defendant said no.
Id. The defendant indicated that all of his answers
would be true. Id. The defendant initialed each page
of the interview form. Id. at 5-6.
this interview, defendant indicated that he was a citizen of
Mexico and had no legal status in the United States.
Id. at 6. He reiterated that he entered the United
States on June 21, 2011 at 6:00 a.m. Id. He also
explained that he “crossed the [d]esert in a place
where there was no fence.” Id. He stated that
he did not have any fear or concern about being removed from
the United States or returning to Mexico and would not be
harmed if he were to return to Mexico. Id. at 7.
the interview, defendant was served with an order of
expedited removal pursuant to 8 U.S.C. § 1225(b)(1),
which provides that an individual who has not been admitted
or paroled into the United States, and who has not shown that
he or she has been physically present in the United States
for the two-year period immediately prior to the date of the
determination of inadmissibility, is subject to removal from
the United States without further hearing or review unless
the individual indicates that he or she intends to seek
asylum or has a fear of persecution. Docket No. 33 at 2; 8
U.S.C. § 1225(b)(1)(A). At the time that defendant was
detained, the DHS was authorized to conduct expedited removal
proceedings in cases when a non-citizen was encountered
within 100 air miles of the United States border and when the
non-citizen could not establish that he or she had been
continuously physically present in the United States for the
fourteen-day period immediately prior to the date of the
encounter. See Designating Aliens For Expedited
Removal, 69 Fed. Reg. 48877-01 (August 11, 2004).
was removed from the United States on July 3, 2011. Docket
No. 33 at 2. Defendant entered the United States and was
removed to Mexico on five subsequent dates: November 30,
2012; April 2, 2013; June 14, 2013; July 1, 2013; and April
23, 2014. Id. Each time he was removed, he was
served with a Notice of Intent/Decision to Reinstate Prior
Order of Removal that reinstated the July 1, 2011 order of
removal. Id. at 2-3.
argues that the indictment must be dismissed because the
order of removal on which the government bases its illegal
reentry prosecution is invalid. Docket No. 33 at 5, 9.
Specifically, defendant contends that he should not have been
subject to expedited removal because he had been continuously
present in the United States for longer than the fourteen-day
period immediately preceding his encounter with CBP
officials. Id. at 9-10. He claims that “the
inability to seek appellate or judicial review of the
removal, at the time, left [him] without recourse to correct
the documented statement regarding his date of entry.”
Id. at 10. The government responds that defendant
may not collaterally attack the deportation order, Docket No.
36 at 2, and, even if defendant could do so, his motion fails
on the merits. Id. at 6.
government contends that defendant may not collaterally
attack the underlying deportation order under 8 U.S.C.
§§ 1252 and 1225(b)(1)(D). Id. at 2.
Section 1252 provides that “no court shall have
jurisdiction to review . . . any individual determination or
to entertain any other cause or claim arising from or
relating to the implementation or operation of an order of
removal pursuant to section 1225(b)(1) of this title.”
8 U.S.C. § 1252(a)(2)(A)(i). Moreover, section 1225
provides that courts “shall not have jurisdiction to
hear any claim attacking the validity of an order of removal
entered under subparagraph (A)(i) or (B)(iii).” 8
U.S.C. § 1225(b)(1)(D).
Ninth Circuit has held that the jurisdiction-stripping
provision found in 8 U.S.C. § 1225(b)(1)(D) is
unconstitutional. See United States v.
Barajas-Alvarado, 655 F.3d 1077, 1087 (9th Cir. 2011).
In reaching its decision, the court relied upon the Supreme
Court's decision in United States v.
Mendoza-Lopez, 481 U.S. 828 (1987). In
Mendoza-Lopez, the Supreme Court determined that,
“where a determination made in an administrative
proceeding is to play a critical role in the subsequent
imposition of a criminal sanction, there must be
some meaningful review of the administrative
proceeding.” 481 U.S. at 837-38. When the
administrative proceeding is not initially subject to
judicial review, “an alternative means of obtaining
judicial review must be made available before the
administrative order may be used to establish conclusively an
element of a criminal offense.” Id. at 838.
“Depriving an alien of the right to have the
disposition in a deportation hearing reviewed in a judicial
forum requires, at a minimum, that review be made available
in any subsequent proceeding in which the result of ...