United States v. Ordoñez, CRIMINAL NO. PWG-17-304

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtPaul W. Grimm United States District Judge
Docket NumberCRIMINAL NO. PWG-17-304
Decision Date31 August 2018




August 31, 2018


Pedro Jose Ordoñez is facing trial for illegal reentry into the United States after prior removal,1 in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Indictment, ECF No. 1. If convicted, he faces imprisonment of up to twenty years. He has filed a Motion to Dismiss Indictment, ECF No. 32, which the parties fully briefed, ECF Nos. 39 and 43. They argued the Motion at a May 30, 2018 hearing, and I asked them to submit supplemental briefing, ECF No. 50, which they have done ECF Nos. 56, 61, 64, 67. All of their filings other than the Government's Surreply have been under seal. I held a second hearing on August 21, 2018. Because the orders under which he was deported were the result of immigration court procedures that were fundamentally unfair, and he suffered prejudice as a result, Ordoñez's Motion is granted.

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On April 15, 1997, when Pedro Jose Ordoñez, a citizen of Honduras, was six years old, his mother brought him into the United States illegally, to live in Arizona. Ordoñez Decl. ¶¶ 1, 3, ECF No. 32-4. She "physically abused [him] on a regular basis," both by "beat[ing] him with an electrical cord, clothes hangers or a broomstick" or a belt, and by "throwing stuff at [him], like high heels and bottles." Id. ¶ 5. On one occasion, she burned his hand by holding it to an electric burner, and when a "big blister" that "was full of puss" formed on his hand, she did not take him to a doctor to treat it; on another occasion she "scratched [him] all over [his] face." Id. ¶¶ 12, 14. His mother was arrested, convicted, and sent to jail for the abuse. During that approximately one year period, Ordoñez lived with his father, whom he had not met until 2001. He was not "as physically abusive" (though far from a model parent). Id. ¶¶ 4, 14-15. Six months after his mother returned from incarceration, Ordoñez moved to Florida with his father. Id. ¶ 16. His father continued to hit him and, after a year, he agreed to move back in with his mother in Arizona. Id. ¶¶ 17-18. This did not end well for Ordoñez. She kicked him out of the house when he was fourteen, and he dropped out of school and lived on the streets. Id. ¶¶ 19, 23, 27. By then, he was already having suicidal thoughts. Id. ¶ 21.

While he was homeless, he "was arrested several times . . . for being out past curfew" and for petty theft. Ordoñez Decl. ¶¶ 27-28. Then, on March 26, 2007, when Ordoñez was fifteen, his mother's boyfriend accosted him outside his mother's house, yelled at him, and "started pushing, punching and kicking [him]." Id. ¶ 29. Ordoñez "tried to walk away" three times without success, after which Ordoñez "swung at him with [his] knife." Id. Ordoñez ran away, but the boyfriend chased him and "knocked [him] down," so Ordoñez "stabbed him in the stomach." Id. Ordoñez turned himself in and was arrested and detained for 154 days. Aug. 29,

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2007 Sentencing Tr. 5-6, ECF No. 32-12; Sept. 22, 2009 Hr'g Tr. 11:20-23. He was depressed and attempted suicide while detained, May 4, 2007 Incident Report, ECF No. 32-9, and he stated that he was hearing voices, May 22, 2007 Supp. Rept., ECF No. 32-10. Charged as an adult, he pled guilty at age sixteen to aggravated assault on July 19, 2007 and was sentenced to an additional four months imprisonment in Arizona state jail on August 29, 2007. Aug. 29, 2007 Sentencing Tr. 5-6; Arizona v. Ordoñez, (Maricopa Cty. Sup. Ct. July 19, 2007), https://apps.supremecourt.az.gov/publicaccess/caselookup.aspx?AspxAutoDetectCookieSupport=1. He attempted suicide again on December 29, 2007. Dec. 29, 2007 Incident Rept., ECF No. 32-13.

Meanwhile, Immigration and Customs Enforcement ("ICE") filed an immigration detainer against Ordoñez on August 3, 2007. Def.'s Mem. 12. In early 2008, he was transferred to immigration custody at Florence Detention Center, where, according to Ordoñez, he was diagnosed with Schizoaffective Disorder. Mental Health History & Recs., ECF No. 32-14.

First Immigration Proceeding

Ordoñez first appeared in removal proceedings at age sixteen before Immigration Judge Scott Jeffries in Florence, Arizona on January 7, 2008. He was without an attorney or a guardian counsel; he informed the court that he wanted to find an attorney and challenge his removal. Jan. 7, 2008 Hr'g Tr., ECF No. 32-16, at 1. At his second appearance ten days later, he requested a bond hearing. Jan. 17, 2008 Hr'g Tr., ECF No. 32-16, at 2.

On January 22, 2008, Ordoñez appeared in immigration court, still without counsel. Arizona Immigration Ct. Hr'g Trs. 2, 4, ECF No. 32-16. The immigration judge informed him that the Department of Homeland Security ("DHS") asserted that he "should be deported because [he] came into this country illegally and also because [he had] been convicted of a crime

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involving moral turpitude." Id. at 3. The immigration judge noted that Ordoñez, who is not a U.S. citizen and whose parents are not U.S. citizens, "was brought" to the United States on about April 15, 1997 "[w]ithout documents." Id. at 3-4. He also noted that Ordoñez was "treated as an adult in [Arizona] criminal court" and convicted of aggravated assault, which the immigration judge stated was "a crime involving moral turpitude." Id. at 4. Based on those facts, the immigration judge found that "both charges of removal ha[d] been sustained by clear and convincing evidence." Id. Further, he concluded that Ordoñez was not "eligible for any relief because of [his] crime involving moral turpitude," and therefore he "order[ed] [him] removed from the United States to Honduras." Id. He asked Ordoñez if he wanted to appeal the decision, and Ordoñez declined. Id.

Return to Honduras

On February 25, 2008, Ordoñez was removed to Honduras, where he maintains he repeatedly was harassed and beaten by the police. Ordoñez Decl. ¶ 35. He recalled:

After I had been in Honduras for about four to five months, the local police started harassing me. The police arrested me on two occasions and beat me up. They thought I was a gang member and they thought I was involved with gang violence. One of my uncles i[s] involved with the gangs so the police thought that I am a gang member as well. They police also picked me up on a few other occasions and put me into their car and drove around. Every time they picked me up, the police would beat me up. They punched me in the lungs, boxed my ears, kicked me and hit me.
The police thought I was involved with gang activity and they wanted a payment. They also thought that I had family in the United States that could give me money so they wanted me to make payments to them. Whenever they arrested me or picked me up they would take anything I had on me of value, including cell phone, jewelry, watch, or even my shoes. The police threatened me that if I didn't make payments to the police they would kill me. They would tell me to "watch out for myself."
I eventually decided that it was not safe for me to remain in Honduras and I decided to return to the United States.

Id. ¶¶ 35-37.

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Second Immigration Proceeding

Ordoñez attempted reentry into the United States on March 17, 2009, at age seventeen. ICE arrested him at the border and placed him in a juvenile detention facility in California. Warrant, ECF No. 32-21. Rather than reinstating his prior deportation order, on March 19, 2009, DHS issued a new Notice to Appear, alleging one ground for deportation: reentry after prior removal. ECF No. 32-27. Then, on May 18, 2009, DHS issued an Amended Notice to Appear, alleging two grounds for deportation: reentry after prior removal, in violation of Immigration and Nationality Act § 212(a)(9)(C)(i)(II), and unlawful presence in the United States, in violation of § 212(a)(6)(A)(i). ECF No. 32-28.

In his admission assessment, Ordoñez's mental health needs were rated "severe" and psychiatric care was recommended. Admis. Assess. 4, ECF No. 32-22. He was transferred to an adult facility in June 2009, when he turned eighteen. Immigration Ct. Docket, ECF No. 32-23. His records from the two detention facilities state that Ordoñez was on suicide watch, reported that he heard voices, and sought mental health assistance. Mental Health Recs., ECF Nos. 34-14, 32-25.

Ordoñez had pro bono counsel beginning with his first hearing in April 2009. His attorneys helped him file a claim for asylum, a claim under the Convention Against Torture, and a U nonimmigrant visa ("U visa") application, based on his mother's abuse of him and his cooperation in her investigation and prosecution. At bond hearings on September 22 and 29, 2009, Immigration Judge Michael Yamaguchi determined that Ordoñez was eligible for release because his Arizona assault charge did not qualify as a crime of violence, aggravated felony, or a conviction for immigration purposes. Sept. 29, 2009 Hr'g Tr. 4:15-25. Ordoñez was released on bond on February 3, 2010, in the care of an acquaintance.

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At Ordoñez's immigration hearing on May 18, 2010, his attorney asked for additional time because he had just filed the U visa application. At the next immigration hearing, on February 15, 2011, Ordoñez's attorney informed the court that Ordoñez was found eligible for a U visa but denied admissibility because of the 2007 aggravated assault conviction. The next day, Ordoñez filed a request for reconsideration of the decision denying him admissibility.

On July 11, 2011, while out on bond, Ordoñez was convicted of resisting, delaying, or obstructing a public officer, peace officer, or EMT during the course of his or her official duties, with regard to a December 25, 2010 incident; he was sentenced to 110 days of imprisonment. Then, on October 21, 2011, Ordoñez was convicted of receipt of stolen property and possession of a dangerous weapon. On June 3, 2012, he was sentenced to 16 months of imprisonment, and...

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