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United States v. Rojas-Fuerte

United States District Court, D. Oregon

April 19, 2019



          Michael H. Simon United States District Judge.

         Billy J. Williams, United States Attorney, and Gregory R. Nyhus and Sarah K. Barr, Assistant United States Attorneys, United States Attorney's Office, 1000 SW Third Avenue, Suite 600, Portland Oregon 97204. Of Attorneys for the United States.

         Conor Huseby, Assistant Federal Public Defender, Office of the Federal Public Defender, 101 SW Main Street, Suite 1700, Portland, Oregon 97204. Of Attorneys for Defendant.

         Michael H. Simon, District Judge.

         Defendant Adrian Rojas-Fuerte ("Rojas-Fuerte") is charged with one count of illegal reentry after having been denied admission, excluded, deported, or removed from the United States as an alien on December 2, 2010, in violation of 8 U.S.C. § 1326. Among other things, that statute prohibits any alien who has been denied admission, excluded, deported, or removed from the United States, or has departed the United States while an order of exclusion, deportation, or removal is outstanding, from returning to the United States without permission. 8 U.S.C. § 1326(a). In the pending criminal action, Rojas-Fuerte collaterally attacks the removal order entered against him in 2010, upon which the indictment is predicated. Rojas-Fuerte contends that his expedited removal proceeding in 2010 did not comport with due process because, among other errors, the immigration officer failed to obtain Rojas-Fuerte's signature on the notice of the charge against him, which was required under applicable regulations. For the reasons that follow, the Court grants Defendant's Motion to Dismiss Indictment (ECF 18) and Supplemental Motion to Dismiss (ECF 23).


         To convict a defendant for illegal reentry under 8 U.S.C. § 1326, the Government bears the burden of proving that the defendant "left the United States under order of exclusion, deportation, or removal, and then illegally reentered." United States v. Barajas-Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011). A defendant charged under section 1326 has a due process right to collaterally attack the removal order that serves as a predicate element for the charged offense. "[W]here a deportation proceeding violates an alien's due process rights, the Government may not rely on any resulting deportation order as proof of an element of a criminal offense." United States v. Leon-Leon, 35 F.3d 1428, 1431 (9th Cir. 1994) (citing United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987)). If the previous deportation order was not subjected to judicial review, an alien may collaterally attack the order in a subsequent criminal proceeding on the grounds that the proceeding resulting in the deportation order was "fundamentally unfair." Barajas-Alvarado, 655 F.3d at 1083 (quoting Mendoza-Lopez, 481 U.S. at 839-40)

         An expedited removal proceeding under 8 U.S.C. § 1225 permits immigration officers to make determinations regarding an alien's admissibility and enter a removal order without a hearing or judicial review. Individuals may be subject to expedited removal proceedings if they "(1) 'are physically present in the U.S. without having been admitted or paroled,' (2) are discovered 'within 100 air miles' of the United States border, and (3) cannot establish that they have been 'physically present in the U.S.' for the fourteen days prior to the encounter with immigration authorities." United States v. Raya-Vaca, 771 F.3d 1195, 1199 (9th Cir. 2014) (quoting Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48880 (Aug. 11. 2004)). All aliens who meet these requirements are deemed "applicants for admission," "regardless of whether they seek to enter at a port of entry or have already entered the country." Id.

         During expedited removal proceedings, immigration officers must determine the reason for an alien's inadmissibility, create a record of the facts and statements made by the alien, advise the alien of the charges against him or her on Form 1-860, and give the alien an opportunity to respond to those charges in a sworn statement. Id. at 1199-1200. "Unless an alien professes a fear of persecution or claims to be a lawful permanent resident (LPR), the resulting expedited removal order 'is not subject to an administrative appeal'" and receives no judicial review. Id. at 1200 (quoting 8 U.S.C. § 1225(b)(1)(C)). To sustain a challenge to an indictment under § 1326 based on a collateral attack of the underlying deportation proceeding, a defendant bears the burden of establishing three requirements. First, he must have exhausted the administrative remedies available for seeking relief from the predicate removal order. Id. at 1201. Second, the deportation proceedings must have deprived him of the opportunity for judicial review. Id. Third, the removal order must have been "fundamentally unfair." Id. (quoting 8 U.S.C. § 1326(d)). A predicate removal order is fundamentally unfair if "the deportation proceeding violated the alien's due process rights and the alien suffered prejudice as a result." United States v. Garcia-Gonzalez, 791 F.3d 1175, 1177 (9th Cir. 2015) (quotation omitted).


         Adrian Rojas-Fuerte is a citizen and national of Mexico and lives in Oregon with his wife and children. At least one of these children is a United States citizen. On September 28, 2010, he was convicted in Marion County Court for failing to perform the duties of a driver, and local authorities referred Mr. Rojas-Fuerte's case to U.S. Immigrations and Customs Enforcement ("ICE"). ICE officer Justin Normand questioned Rojas-Fuerte, who admitted that he did not have proper immigration documents to be in the United States. ICE entered the fingerprints of Rojas-Fuerte into its computer system and found that he had three prior encounters with ICE. They occurred on April 23, 2005, April 17, 2007, and April 26, 2007. After each encounter with ICE, Rojas-Fuerte was allowed to voluntarily return to Mexico. On October 1, 2010, Rojas-Fuerte was again allowed an administrative voluntary return to Mexico.

         Several weeks later, on November 11, 2010, Border Patrol agents encountered Rojas-Fuerte near Nogales, Arizona. Rojas-Fuerte faced expedited removal proceedings because he was present in the United States without permission, had been discovered within 100 miles of the border, and could not establish that he had been present in the United States for the prior fourteen days. He was placed in an expedited removal proceeding and repatriated on November 12, 2010. On November 26, 2010, Border Patrol agents again encountered Rojas-Fuerte, this time near El Centro, California. He was again placed in expedited removal proceedings and he left the United States later that day on foot.

         Four days later, on November 30, 2010, Border Patrol agents again found Rojas-Fuerte inside the United States, near Calexico, California. ICE placed Rojas-Fuerte in expedited removal proceedings and removed him from the United States. As part of this November 30, 2010 removal proceeding, which in part forms the basis of the present indictment, a Border Patrol agent completed a Notice and Order of Expedited Removal Form 1-860. This form documents that Rojas-Fuerte was "an immigrant not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Immigration and Nationality Act." The form was signed by Border Patrol agent Justin Pryor, who signed a certificate of service attesting that he personally served the original Form 1-860 on Rojas-Fuerte. Rojas-Fuerte, however, did not sign the form.[1] ECF 25-4 at 1. Although Rojas-Fuerte did not sign the Form 1-860, he did sign the Notice to Alien Ordered Removed/Departure Verification Form 1-296, which informed him in general terms that he had been found to be inadmissible and was prohibited from entering the United States for a period of five years. ECF 25-4 at 2. That form also advised Rojas-Fuerte that he could face criminal charges under 8 U.S.C. § 1326 if he reentered the United States without permission. Rojas-Fuerte also initialed, and had his fingerprints placed on, the Record of Sworn Statement in Proceedings Form I-867A, and he was read his rights and answered Border Patrol's questions. ECF 25-3 at 3-5. Finally, Rojas-Fuerte signed, initialed, and placed his fingerprints on the "Jurat" record of sworn statement, Form I-867B, in which he answered four questions about why he came to the United States and whether he feared harm if he were returned to Mexico. ECF 25-4 at 6-8.

         On December 2, 2010, Border Patrol agents again encountered Rojas-Fuerte near Calexico, California. Border Patrol agents "reinstated" the November 30, 2010 removal order from three days earlier and issued a warrant of removal on December 2, 2010. On July 7, 2017, Rojas-Fuerte was indicted on the ...

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