United States District Court, D. Oregon
OPINION AND ORDER
Michael H. Simon United States District Judge.
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
Huseby, Assistant Federal Public Defender, Office of the
Federal Public Defender, 101 SW Main Street, Suite 1700,
Portland, Oregon 97204. Of Attorneys for Defendant.
H. Simon, District Judge.
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).
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)
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.
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)
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.
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.
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. 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.
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 ...