United States v. Guzman-Hernandez

• Decision Date: 17 September 2020
• Docket Number: No. 4:20-cr-06001-SMJ,4:20-cr-06001-SMJ
• Citation: 487 F.Supp.3d 985
• Court: U.S. District Court — District of Washington
• Parties: UNITED STATES of America, Plaintiff, v. Noel GUZMAN-HERNANDEZ, Defendant.

487 F.Supp.3d 985

UNITED STATES of America, Plaintiff,

v.Noel GUZMAN-HERNANDEZ, Defendant.

No. 4:20-cr-06001-SMJ

United States District Court, E.D. Washington.

Signed September 17, 2020

Richard Cassidy Burson, U.S. Attorney's Office, Yakima, WA, for Plaintiff.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

SALVADOR MENDOZA, JR., United States District Judge

On September 3, 2020, this Court heard argument on Defendant Noel Guzman-Hernandez's Motion to Dismiss, ECF No 36. Guzman-Hernandez moved to dismiss the indictment on the grounds that the predicate order of expedited removal was entered in violation of his due process rights. The Government contends that the recent Supreme Court decision in Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020), decimates years of both Supreme Court and Ninth Circuit jurisprudence. Because this result would clearly contravene the limited scope of the decision in Thuraissigiam , this Court grants Guzman-Hernandez's Motion to Dismiss.

BACKGROUND

Defendant Noel Guzman-Hernandez is charged with one count of illegal reentry after removal, 8 U.S.C. § 1326. He moves to dismiss the indictment because, he argues, the predicate order of expedited removal was fundamentally unfair, and thus invalid. ECF No. 36 at 1.

Guzman-Hernandez is a thirty-nine-year old undocumented immigrant from Mexico. ECF No. 20 at 2. He lived in Mexico until he was a teenager, when he, his mother, and his siblings moved to the United States to live with his father. ECF No. 36-1 at 1. His father, a legal permanent resident in the United States, petitioned for Guzman-Hernandez's legal status, but he never obtained legal status because he moved out of his parents' home when they separated—about two years after he moved to the United States. Id. at 1–2. His mother and siblings now have legal status and lived in the country in April 2010. ECF No. 20 at 2.

Guzman-Hernandez has had three encounters with immigration authorities that have resulted in his voluntary return to Mexico. ECF Nos. 36-1, 36-2. The last of these encounters was in January 2010, when Guzman-Hernandez was in custody at the Wapato City Jail for a negligent driving offense. ECF No. 36-2. Immigration authorities took custody of him, and he was transported to Tacoma and served with a Notice to Appear to initiate formal removal proceedings. An immigration judge granted his application for voluntary departure to Mexico, which occurred a few days later. ECF Nos. 36-3, 36-4.

In April 2010, immigration officials again detained Guzman-Hernandez near Nogales, Arizona, approximately three-quarters of a mile from the border. ECF No. 36-7 at 2. The case was processed as an expedited removal. ECF No. 36-6 at 3. Guzman-Hernandez states that he was not told that it was an expedited removal, and that he thought that it was a voluntary departure. ECF No. 36-1 at 4–5. Guzman-Hernandez gave a Sworn Statement in an interview conducted by Agent Gilbert Serna. ECF No. 36-7. Agent Serna recorded Guzman-Hernandez's responses on form I-876A, which ran two pages, each of which Guzman-Hernandez initialed. ECF No. 36-7. Guzman-Hernandez then signed and initialed the one-page form I-867B, known as the "Jurat," which is intended to accompany the form I-867A, attesting that: "I have read (or have had read to me) this statement, consisting of: 1 pages (including this page)." ECF No. 36-7 at 3. Guzman-Hernandez's statement does not discuss his immigration history or his prior removals. ECF No. 36-7. Guzman-Hernandez told the Agent Serna that he was visiting family in the United States, but no questions were asked about what family he had in the country. ECF No. 36-7 at 3. Agent Serna noted in the Form I-831 report of the incident that he read and explained Form I-867A and I-867B to Guzman-Hernandez. ECF No. 36-6 at 2.

Guzman-Hernandez also signed a "Notice of Rights" written in Spanish. ECF No. 36-8. He initialed the option admitting he was illegally present in the United States, waiving his right to a hearing, and requesting to return to Mexico as soon as possible. Id. This document does not state that Guzman-Hernandez was being processed as an expedited removal. Id. Agent Brian Gotowko discussed this Notice with Guzman-Hernandez in Spanish. ECF No. 37-1 at 2.

Agent Serna then prepared a Notice and Order of Expedited Removal, Form I-860. ECF No. 36-9. Guzman-Hernandez did not initial or sign this form. Id. Yet it appears that Agent Serna signed the form stating that it was personally served upon Guzman-Hernandez. Id.

Guzman-Hernandez was removed to Mexico the same day, April 25, 2010. In December 2019, immigration officials encountered Guzman-Hernandez in the United States, leading to the instant prosecution.

DISCUSSION

A. Legal Standard in the Ninth Circuit

A defendant charged with illegal reentry can defend against the charge by attacking the validity of the prior removal. United States v. Raya-Vaca , 771 F.3d 1195, 1201 (9th Cir. 2014) (quoting United States v. Ubaldo-Figueroa , 364 F.3d 1042, 1047 (9th Cir. 2004) ). To sustain such an attack, a defendant must demonstrate that (1) he "exhausted any administrative remedies that may have been available to seek relief" from the predicate removal order, (2) the deportation proceedings "improperly deprived [the defendant] of the opportunity for judicial review," and (3) the removal order was "fundamentally unfair." 8 U.S.C. § 1326(d).

As to the first and second requirements, expedited removals of inadmissible arriving noncitizens do not provide for administrative review except in the instance of a noncitizen claiming asylum or claiming to be a legal permanent resident. 8 U.S.C. § 1225(b)(1)(C) ; see United States v. Barajas-Alvarado , 655 F.3d 1077, 1081 (9th Cir. 2011) ; see also Raya-Vaca , 771 F.3d at 1202 (finding defendant exhausted available administrative remedies and was deprived of judicial review in expedited removal proceeding with no opportunity for administrative or judicial review). Thus, a defendant removed through expedited removal proceedings can prevail by showing that entry of the removal order was fundamentally unfair. Raya-Vaca , 771 F.3d at 1202. To show fundamental unfairness in the Ninth Circuit, the defendant must show that (1) entry of the order violated his right to due process, and (2) he suffered prejudice as a result. Raya-Vaca , 771 F.3d at 1202. The Government now asks this Court to apply Thuraissigiam to the facts in this case. For the reasons set forth below, its efforts are misguided.

B. The Supreme Court's decision in Thuraissigiam does not affect the legal standard in this case

On June 25, 2020, the Supreme Court held that Constitutional Due Process rights do not apply to civil habeas proceedings for immigrants detained within 25 yards of the border attempting to enter the United States unlawfully. Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 1982, 207 L.Ed.2d 427 (2020). The noncitizen respondent in Thuraissigiam was encountered and detained by a Border Patrol agent approximately 25 yards from the U.S.-Mexico border. An asylum officer and a supervising officer reviewed his case and determined he lacked a credible fear of persecution. An immigration judge affirmed on appeal. Id. at 1967–68. The noncitizen then filed a federal habeas petition seeking review of his asylum claim. The Supreme Court held that denying habeas review violated neither the suspension nor the due process clause. Id. at 1968. With respect to due process, the Supreme Court held constitutional protections did not apply because "an alien who is detained shortly after unlawful entry cannot be said to have effected an entry." Id. at 1982–83 (internal citation omitted). This decision partially abrogated Raya-Vaca to the extent that it had been applied to civil asylum proceedings with someone detained 25 yards from the border. Id. at 1968.

The Government argues that this creates a heightened standard of causation—that the defendant would need to show a direct link between any violations of his procedural rights and the resulting prejudice. This Court concludes that the partial abrogation of Raya-Vaca does not impact the analysis here.

1. In Thuraissigiam , the Supreme Court did not, nor did it intend to, hold that non-citizens have no Due Process Rights

The Supreme Court has long held that non-citizens found in the United States have constitutional rights. In Yick Wo v. Hopkins , 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), the Supreme Court reasoned that the "rights of the petitioners ... are not less because they are aliens and subjects of the emperor of China." Id. at 368, 6 S.Ct. 1064. Almost a century later, in Plyler v. Doe , 457 U.S. 202, 210, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), the Supreme Court held that "[w]hatever his status under the immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term. Aliens, even aliens whose presence in this country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments." See also Mathews v. Diaz , 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) ("The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection.") (internal citations omitted).

It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. But, once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.

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