United States v. Nunez

• Decision Date: 12 July 2018
• Docket Number: 17-CR-493 (PKC)
• Citation: 375 F.Supp.3d 232
• Parties: UNITED STATES of America, v. Jaime Reyes NUNEZ, Defendant.
• Court: U.S. District Court — Eastern District of New York

375 F.Supp.3d 232

UNITED STATES of America,

v.Jaime Reyes NUNEZ, Defendant.

17-CR-493 (PKC)

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

Signed July 12, 2018

Jason Maurice Manning, US Attorney's Office, Brooklyn, NY, for United States of America.

James Darrow, Federal Defenders of New York, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge

Defendant Jaime Reyes Nunez ("Reyes Nunez") is charged under 8 U.S.C. §§ 1326(a) and (b)(1) with illegal reentry into the United States subsequent to the entry of a deportation order in 2006. Reyes Nunez moves to dismiss the indictment pursuant to 8 U.S.C. § 1326(d) on the basis of a fundamental error in his removal proceeding. For the reasons stated below, the Court grants Reyes Nunez's motion and dismisses the indictment.

BACKGROUND

Defendant Reyes Nunez was born in El Puerto de la Libertad, on the southern coast of El Salvador on June 10, 1988. (Def's. Mot. to Dismiss ("Def's. Mot."), Dkt. 16, at 2.) At that time, El Salvador was in the midst of a civil war, and Reyes Nunez's parents decided to move the family to Honduras shortly after his birth, settling in a small farming village in the state of Yoro. (Id. at 2-3.) Reyes Nunez's father worked as a farmer and his mother sold food to local laborers. (Id. at 3.) Reyes Nunez's father left the family in 1994 and the family was homeless periodically over the next few years. (Id. ) In 1998, following Hurricane Mitch, which battered the state of Yoro, Reyes Nunez's mother left for the United States to find work, and Reyes Nunez went to live with his uncle, and later, a local landowner named Don Jose Truchero in the municipality of El Progreso. (Id. at 3-4.)

Around this time, the transnational gang MS-13 began to recruit Reyes Nunez and encourage him to commit criminal acts. His paternal uncle, Efrain Reyes, was murdered by the gang in 1998. (Id. at 6.) Reyes Nunez resisted the gang and was violently attacked on numerous occasions as a result. (Id. ) The attacks prompted him to move back to El Puerto de la Libertad in El Salvador, but MS-13 had an active presence there too, and the harassment continued. (Id. at 7.) His father, living in the United States, was contacted by a gang member who threatened to "come after" Reyes Nunez if his father did not pay extortion money. (Id. ) Reyes Nunez moved back to Honduras and attended a trade school, but was again targeted by the gang upon his return. (Id. )

In April of 2006, at the age of 17, Reyes Nunez swam across the Rio Grande River to enter the United States. (Id. at 8.) He was apprehended by U.S. Customs and Border Patrol Agents ("CBP"). (Id. ) He admitted to the agents that he was "a native and citizen of El Salvador by birth," that he entered the United States illegally, and that he "had no documents to remain in the United States legally." (Id. ) Reyes Nunez was detained in a holding cell with "at least 20 other undocumented people" and was given a Notice of Custody Determination, which stated that Reyes Nunez would be detained by Immigration and Naturalization Service ("INS") "pending a final determination by the immigration judge in [his] case." (Id. at 8-9.) Reyes Nunez signed that document, along with a Notice to Respondent, which stated that he would "be advised by the immigration judge before whom [he] appear[s], of any relief from removal for which [he] may appear eligible." (Id. at 9.) His signature appears under the statement, "To expedite a determination in my case, I request an immediate hearing." (Id. )

Reyes Nunez also signed a Request For Disposition of Salvadorans, checking next to two paragraphs, one in English and one in Spanish, that stated, in relevant part: "I wish to request a hearing before an immigration judge to determine whether I may remain in, or be removed from the United States. I understand that if I wish to request political asylum I must request a hearing." (Id. at 9.) The form also stated, in pertinent part:

Right to Apply for Political Asylum

If you fear persecution because of your race, religion, nationality, membership in a particular social group, or political opinion, you may request political asylum. If you wish to apply for political asylum you should advise the officer who gave you this notice. An immigration judge will decide if you will be given or denied political asylum.

Right to Request Voluntary Departure

If you want to return to El Salvador, you may ask to be allowed to depart on the first available transportation. By agreeing to depart voluntarily, you give up your right to a deportation hearing and your right to apply for political asylum. If you request to depart voluntarily and then change your mind at any time before you actually go home, you may still request a hearing before a judge. You may also make a request to the judge at the hearing to depart voluntarily.

(Notice of Rights to Salvadorans 4/26/06, Dkt. 17-10, at 9-10.)

Reyes Nunez was criminally prosecuted pursuant to an initiative called Operation Streamline, an enhanced prosecution initiative in Del Rio, Texas, in which "Border Patrol refer[red] aliens entering the United States illegally for the first time or attempting re-entry to DOJ for criminal prosecution." (Def's. Mot., at 11.) A few days after his arrest, Reyes Nunez appeared in front of a U.S. Magistrate Judge in Del Rio, for a hearing on his alleged misdemeanor of unlawful entry in violation of 8 U.S.C. § 1325. (Id. at 10-11.) Reyes Nunez received counsel from a Criminal Justice Act ("CJA") attorney, Robert Garza, who was appointed to represent multiple defendants on the docket on the same day. (Id. at 11.) The Magistrate Judge addressed a "crowd of defendants as a group", with the translation being provided through headphones to the defendants. (Id. at 12.) The group "pled guilty en masse." (Id. at 13.) On May 3, 2006, Reyes Nunez was sentenced to 90 days' imprisonment. (Government's Opposition ("Gov. Opp'n"), Dkt. 19, at 5.)

On June 15, 2006, Reyes Nunez signed a second Request for Disposition of Salvadorans, checking a paragraph in Spanish where he admitted to being in the country illegally, waiving his right to a hearing before an immigration judge ("IJ"), and asking to return to his home country. (Notice of Rights to Salvadorans 6/15/06, Dkt. 17-13, at 12.) He also signed a Stipulated Request For Order/Waiver of Hearing ("Stipulated Removal"), which stated that he understood the consequences of signing the Stipulated Removal, including the fact that he would be removed from the country and that he was waiving his right to appeal the written order of removal. (Def's. Mot., at 13.) The Stipulated Removal stated, in pertinent part:

I do not wish to apply for relief from removal pursuant to the Immigration and Nationality Act (hereinafter the Act). I am NOT seeking the relief of voluntary departure, political asylum, withholding of removal, adjustment of status, registry, review of a termination of conditional resident status, review of a denial or revocation of temporary protected status, family unity benefits, legalization benefits, cancellation of removal, naturalization, or any other possible relief or other benefits under the Act.

(Stipulated Removal, Dkt. 17-13, at 5.)

Reyes Nunez stated that he signed these documents because an immigration officer told him it "would speed up my deportation if [he] signed it." (Def's. Mot., at 13.) An immigration officer certified that he had read the form to Reyes Nunez in Spanish and that Reyes Nunez indicated that he "had no fear of return to his ... native country." (Gov. Opp'n., at 7.) Reyes Nunez did not have an immigration attorney at any point in his 2006 removal proceedings or any time thereafter. (Def's. Mot., at 15.)

The order removing Reyes Nunez was entered on July 7, 2006 ("2006 Removal Order"). (Id. ) The removal order from the IJ states that, "[u]pon the basis of respondent's admissions, I have determined that the respondent is subject to removal on the charge(s) contained in the Notice to Appear.... Respondent has made no application for relief from removal." (Order of the Immigration Judge, Dkt 17-13, at 3.) This was the only statement that the IJ made in the removal order.

Reyes Nunez re-entered the United States three times thereafter and was deported two of those times. Each time, the removal order was a reinstatement of the 2006 Removal Order. (Gov. Opp'n., at 7-9.)

Reyes Nunez's first post-2006 removal occurred after he was arrested in October 2008 in New York County for robbery in the Second Degree. He pled guilty to the offense in August 2009 and was sentenced to time served. (Id. at 7.) On August 17, 2009, he was transferred to Department of Homeland Security custody and deported on November 13, 2009. (Id. at 7-8.)

His second post-2006 removal occurred after he was apprehended by CBP on April 29, 2010, having just swum across the Rio Grande River. (Id. at 8.) In a sworn statement in Spanish, Reyes Nunez stated that he did not have "any fear of persecution or torture" if he were to be removed from the United States. (Id. ) On June 23, 2010, he pled guilty to illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(1), and was sentenced to 37 months' imprisonment soon thereafter. He finished his sentence and was removed to El Salvador on February 8, 2013.

Reyes Nunez re-entered the United States again some time before April 30, 2017, when he was arrested for driving without a license in Middleton, Pennsylvania. On August 3, 2017, Reyes Nunez was apprehended by immigration officers in Queens, New York. (Id. at 9.) When asked by an immigration officer in Spanish why he had come to the United States, he responded that he was "afraid." (Id. ) However, he also responded "no" when the officer asked whether he had "any fear of persecution or torture should [he] be removed from the United States." (Id. ) Reyes Nunez also told the officer, "If you're going to deported [sic] me, do it as soon as possible. I need to see what I am...