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United States v. Vieira-Ferel

United States District Court, D. Oregon, Portland Division

August 5, 2019




         The grand jury indicted defendant Francisco Vieira-Ferel (Vieira-Ferel) on one count of illegal reentry, in violation of 8 U.S.C. § 1326. The indictment alleges that Vieira-Ferel unlawfully reentered the United States without the consent of the appropriate authorities after having been removed as an alien on May 11, 2014.[1] Vieira-Ferel collaterally attacks a previous removal order entered against him on March 8, 2014, following expedited removal proceedings under 8 U.S.C. §1225. Vieira-Ferel contends the expedited removal proceedings that produced the removal order of March 2014 did not comport with due process and that he was prejudiced as a result, I conclude that his due process rights were violated and resulted in prejudice to him.


         Vieira-Ferel is a thirty-two-year-old Mexican national and citizen with no criminal record. On March 8, 2014, a border patrol agent arrested Vieira-Ferel in the District of Arizona, thirty meters from the border. Because Vieira-Ferel 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, the border patrol agent commenced an expedited removal proceeding pursuant to 8 U.S.C. § 1225. During the removal proceeding, Mark Koska (Koska), a Border Patrol Agent, completed a Notice and Order of Expedited Removal Form I-860. [#22-3]. This form documents that Vieira-Ferel 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," Koska signed a certificate of service at the bottom of the form attesting that he personally served the original Form I-860 on Vieira-Ferel. Vieira-Ferel's signature does not appear on the front of Form I-860 and the back of the form is not in the record.

         During the removal proceedings, Vieira-Ferel answered questions about his background and his entry into the United States. Vieira-Ferel's answers were memorialized in a two-page Record of Sworn Statement (Form I-867A). [#22-4 at 2-3], Vieira-Ferel initialed page one of the form and signed page two. Form I-867B, a Jurat for Record of Sworn Statement, signed by Vieira-Ferel, affirmed the truth of his statements contained in Form I-867A. [#22-4 at 4]. The signed Form I-867B inaccurately states that Form I-867A consisted of one page. In these forms, Vieira-Ferel indicated that he climbed over a fence to enter the United States and came looking for work.

         Koska also completed Form I-213, Record of Deportable/Inadmissible Alien [#22-1], which included basic information about Vieira-Ferel, his fingerprints and the latitudinal and longitudinal coordintes for the location of his arrest. In this document, Vieira-Ferel provided Mexican addresses for his wife and parents. This form also indicates that Vieira-Ferel was "a candidate and participant in the ALIEN TRANSFER EXIT PROGRAM as part of the OPERATION ALLIANCE TO COMBAT TRANSNATIONAL THREATS." Following the expedited proceeding, Vieira-Ferel was removed on March 9, 2014.

         On October 31, 2017, Vieira-Ferel was found in the United States in the District of Oregon, taken into custody and charged with illegal reentry under 8 U.S.C. § 1326.


         Any individual who enters the United States is entitled to the protections of the Due Process Clause, regardless of his legal status. Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Due process requires "some meaningful review" of an administrative proceeding that results in a removal order that underlies the imposition of a criminal charge. United States v. Barajas-Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011). When Congress enacts a procedure, aliens are entitled to it. Barajas-Alvarado, 655 F.3d at 1084.

         To convict an alien of illegal reentry the government has the burden of proving that "the alien left the United States under order of exclusion, deportation, or removal, and then illegally reentered." Barajas-Alvarado, 655 F.3d at 1079. A defendant may collaterally attack his prior removal order when facing criminal sanctions for unlawfully reentering the United States. 8 U.S.C. § 1326(d); United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014). In order to succeed in collaterally attacking an underlying removal order a defendant must demonstrate that "(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). A removal order is fundamentally unfair if a defendant's due process rights were violated and he suffered prejudice as a result, United States v. Garcia-Santana, 774 F.3d 528, 532-33 (9th Cir. 2014).

         An expedited removal proceeding pursuant to 8 U.S.C. § 1225(b)(1) may be employed by an immigration official if an alien is discovered within 100 miles of the United States border, has been in the United States for less than fourteen days and was not legally admitted. 8 U.S.C. § 1225(b)(1)(A)(i). "An alien present in the United States who has not been admitted or who arrives in the United States.. .shall be deemed for the purposes of this chapter an applicant for admission." 8 U.S.C. § 1225(a)(1). During expedited removal proceedings, immigration officers determine the admissibility of an alien and, if necessary, issue removal orders. 8 U.S.C. § 1225(a)(1).


         The statute governing expedited removal, 8 U.S.C. § 1225(b)(1), provides no opportunity for administrative or judicial review. Raya-Vaca, 771 F.3d at 1202. Thus, Vieira-Ferel has exhausted all available administrative remedies and was deprived of an opportunity for judicial review, satisfying the first two elements required to collaterally attack his removal proceedings, However, to challenge successfully a prior removal order, Vieira-Ferel still must establish that the earlier proceeding was "fundamentally unfair." He must show that his ...

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