United States v. Espinoza

• Decision Date: 04 March 2020
• Docket Number: 1:19-cr-00641-GHW
• Citation: 442 F.Supp.3d 596
• Parties: UNITED STATES, v. Cesar ESPINOZA, Defendant.
• Court: U.S. District Court — Southern District of New York

442 F.Supp.3d 596

UNITED STATES,

v.Cesar ESPINOZA, Defendant.

1:19-cr-00641-GHW

United States District Court, S.D. New York.

Signed March 4, 2020

Nicholas S. Bradley, DOJ-USAO, New York, NY, for United States.

Clay Hubbard Kaminsky, Federal Defenders of New York Inc., New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

GREGORY H. WOODS, United States District Judge:

Defendant Cesar Espinoza entered the United States without authorization. Soon after he crossed the border, Mr. Espinoza was apprehended and deported. Quickly thereafter, Mr. Espinoza reentered the United States and was again apprehended and deported. Mr. Espinoza then reentered the country for a third time, was arrested, and currently faces prosecution for illegal reentry. Mr. Espinoza now moves to dismiss the indictment against him because his prior removal was fundamentally unfair. Mr. Espinoza argues that he had a right to be informed of his ability to request discretionary relief from removal, that he would have requested such relief if he was aware that it was available, and that there is a reasonable probability that he would have been granted such relief if he had requested it. Mr. Espinoza also argues that inconsistencies in the documentary record raise doubts about whether the immigration officials informed him of the nature of the proceedings, the charges against him, and his right to consular assistance. Because Mr. Espinoza did not have a right to be informed of his ability to request discretionary relief from removal and because there is not a sufficient causal connection between the other errors he alleges and the prejudice he claims, Mr. Espinoza's motion to dismiss the indictment is DENIED.

I. BACKGROUND

Mr. Espinoza is a native and citizen of Mexico. Declaration of Cesar Espinoza-Zeferino ("Espinoza Decl."), Ex. A to Declaration of S. Isaac Wheeler in Support of Motion to Dismiss ("Wheeler Decl."), Dkt. No. 18, ¶ 2. He first came to the United States in or about September 2014 with his uncle and father, who had arranged an illegal border crossing from Mexico by paying "coyotes," or smugglers. Id. ¶ 4. Shortly after his crossing, Mr. Espinoza was arrested with his uncle and father. Id. ¶¶ 5-6. The three were then transported to a Border Patrol Station in the vicinity of McAllen, Texas. Form I-213, Ex. B to Wheeler Decl., at USAO_000057.

The records created in connection with the removal proceedings describe what occurred after Mr. Espinoza was apprehended. As memorialized in a Form I-867A/B, Mr. Espinoza was interviewed by Fernando Cortez, a Border Patrol Agent.

In response to Mr. Cortez's questions, Mr. Espinoza indicated that he (i) understood what was explained to him; (ii) did not have any questions; (iii) agreed to answer the Border Patrol Agent's questions; and (iv) swore that any statements he made would be true and complete. Form I-867A/B, Ex. C to Wheeler Decl. at USAO_000015. Mr. Espinoza signed this form and by doing so, he attested that he either read, or had read to him, his statement, that his answers were true and correct to the best of his knowledge, and that his statement was a "full, true and correct record." Id. at USAO_000017.

On the same form, Mr. Espinoza also attested that he was advised, in Spanish, of his "rights, and the purpose and consequences of [the] interview," including that he did "not appear to be admissible or to have the required legal papers authorizing [his] admission to the United States," which "may result in [his] being denied admission and immediately returned to [his] home country without a hearing." Id. at USAO_000015. The form also stated that Mr. Espinoza was advised that if he was refused admission, he would be "immediately removed from this country," and if he was removed, that he "may be barred from reentry for a period of 5 years or longer." Id. In addition, by signing the form and initialing each page, Mr. Espinoza attested that he understood United States law "provides protection to certain persons who face persecution, harm or torture upon return to their home country," and that if he "fear[ed] or [had] a concern about being removed from the United States or about being sent home, [he] should tell [the Border Patrol Agent] during this interview because [he] may not have another chance." Id.

The I-867A/B also indicates that Mr. Espinoza, in response to questions posed in Spanish, provided his name, date and place of birth, and confirmed that he and his parents were citizens of Mexico and that they never had any legal claim to being United States citizens. Id. at USAO_000016. He admitted that he entered the United States illegally on or about September 4, 2014, and that he did not have any fear of persecution or torture upon returning to Mexico. Id. at USAO_000016-18.

Mr. Espinoza has submitted a sworn declaration that in many respects directly contradicts the contemporaneous documentary record from the time that he was apprehended. Mr. Espinoza claims that the officer questioning him did not read to him from any document or preface any of these questions with an explanation of Mr. Espinoza's legal status or the purpose of the questioning. Espinoza Decl. ¶ 10. This contradicts the documentary record established in the I-867A/B, which contains a statement that a Border Patrol Agent is supposed to read to a detained alien, including a statement that the agent would "explain [the alien's] rights, and the purposes and consequences of this interview." Form I-867A/B at USAO_000015. Although the I-867A/B begins with a lengthy recitation that identifies the officer's position, the reason for and potential consequences of the interview, and his rights under applicable law, this recitation is in English, which Mr. Espinoza did not understand. Espinoza Decl. ¶ 17.

Mr. Espinoza now attests that an officer questioned him in Spanish that was "sometimes difficult" for him "to understand." Id. ¶ 9. Mr. Espinoza states that the questioning officer did not explain that a fear of being returned to Mexico might lead to his being allowed to remain in the United States or ask Mr. Espinoza or his father if they were willing to answer questions or if they wished to speak to an attorney. Id. ¶ 10; cf. Form I-867A/B at USAO_000015 ("If you fear or have a concern about being removed from the United States or about being sent home, you should tell me so during this interview because you may not have another chance."). Rather, Mr. Espinoza claims that the officer simply began to ask questions, such as why and how he had come to the United States and details about the coyotes who had helped him cross the border. Espinoza Decl. ¶¶ 10-11.

Mr. Espinoza also attests that the I-867A/B did not accurately record his answers to questions posed by immigration officials. The I-867A/B records that Mr. Espinoza stated that his destination was McAllen, Texas. I-867A/B at USAO_000016; see also id. at USAO_000017 (stating that Mr. Espinoza told an immigration officer that he intended to live and work in McAllen, Texas). But Mr. Espinoza attests that, at the time, he did not know that McAllen, Texas existed. Espinoza Decl. ¶ 13. Rather, he attests that he had always planned to travel to New York City, where his father had previously lived and worked. Id. The form also states that Mr. Espinoza responded to the question "[h]ow did you enter into the United States?" with the answer "I crossed the river by swimming." I-867A/B at USAO_000016. However, Mr. Espinoza now attests that he did not swim from Mexico to the United States but rather traveled on an inflatable raft. Espinoza Decl. ¶ 12. Mr. Espinoza notes that his full name is given on the I-867A/B as "Cesar Espinoza-Seferino," which is a misspelling of his true maternal surname, Zeferino. Memorandum of Law in Support of Defendant's Motion to Dismiss the Indictment ("Mem."), Dkt. No. 19, at 5; I-867A/B at USAO_000016. In addition, the initials on the pages of the I-867A/B are "CES," but Mr. Espinoza's initials are "CEZ." I-867A/B at USAO_000016-18. Mr. Espinoza attests that when an immigration officer "told [him] to put [his] initials in several places," Mr. Espinoza "was not sure what he meant," so the immigration officer instructed him to "write the letters ‘CES.’ " Espinoza Decl. ¶ 17.

Mr. Espinoza also points to several other inconsistencies in the documentary record. The I-213 states that "[t]he process of this expedited removal was conducted via video conference[.]" I-213 at USAO_000058. Mr. Espinoza attests that he did not speak with an officer via video conference at any stage of the interview process. Espinoza Decl. ¶ 19. The I-213 also states that Border Patrol Agent Robert Originales conducted the proceeding. I-213 at USAO_000058. But, as noted above, the I-867A/B interview record states that it was prepared by Agent Fernando Cortez. I-867A/B at USAO_000015; see also Mem. at 9-14 (detailing other alleged inconsistencies).

Several days after his initial interview, Mr. Espinoza was removed from his cell and presented with papers purporting to record his interview as well as an order of removal and was asked to sign them. Espinoza Decl. ¶ 17. Mr. Espinoza did so but attests that he did not have an opportunity to read these forms or have them read to him. Id. Mr. Espinoza declares that he was not informed that he had a statutory right to withdraw his request for admission, and that he would have availed himself of that right if he had been aware of it. Id. ¶ 14.

On September 6, 2014, a Border Patrol Agent served a Notice and Order of Expedited Removal on the defendant, and he was removed from the United States on or about September 8, 2014. Determination of Inadmissibility and Order of Removal, Ex. D to Wheeler Decl.; Notice to Alien Ordered Removed/Departure Verification, Ex. E to Wheeler Decl.

After he was deported, Mr. Espinoza almost immediately returned to the United States. Mr. Espinoza's second entry was facilitated by the same group of coyotes who again smuggled...