United States v. Vasquez-Vasquez

          ORDER

          PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

         This 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.

         Section 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.

         I. BACKGROUND

         On June 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.

         On July 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.

         During 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.

         After 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).

         Defendant 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.

         II. ANALYSIS

         Defendant 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.

         A. Collateral Attack

         The 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).^[1]

         The 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 ...