United States v. Palacios-Arias

• Decision Date: 15 November 2022
• Docket Number: CRIMINAL ACTION 3:20cr62
• Parties: UNITED STATES OF AMERICA, v. FRANCISCO EDGARDO PALACIOS-ARIAS, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

UNITED STATES OF AMERICA,
v.
FRANCISCO EDGARDO PALACIOS-ARIAS, Defendant.

CRIMINAL ACTION No. 3:20cr62

United States District Court, E.D. Virginia, Richmond Division

November 15, 2022

OPINION

John A. Gibney, Jr., Senior United States District Judge

This matter comes before the Court following a Fourth Circuit remand on Defendant Francisco Edgardo Palacios-Arias's motion to dismiss the indictment. The parties submitted supplemental briefs on July 1, 2022, and the Court held a hearing on the matter on August 17, 2022.^[1]

Palacios-Arias seeks to vacate his 2021 conviction for illegal reentry by challenging the validity of his prior deportation order. Pursuant to 8 U.S.C. § 1326, Palacios-Arias may collaterally attack his prior deportation order provided that (1) he has “exhausted any administrative remedies that may have been available to seek relief against the order”; (2) the deportation proceeding “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). On remand, Palacios-Arias argues that (1) he exhausted his administrative remedies by filing an appeal with the Board of Immigration Appeals (“BIA”), and that (2) his immigration attorney's ineffective assistance deprived him of the opportunity for judicial review and rendered the entry of his deportation order fundamentally unfair. (See ECF No. 60, at 8-9, 16-19.)

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Upon careful review of the record, the Court finds that the dipositive issue in this case is whether Palacios-Arias received ineffective assistance of counsel. As explained below, the Court finds that Palacios-Arias suffered no prejudice due to his attorney's alleged errors during his September 2017 removal hearing. Accordingly, his ineffective assistance claim lacks merit. Because Palacios-Arias did not receive ineffective assistance of counsel, he fails to satisfy the mandatory requirements of § 1326(d)(2)-(3).^[2] The Court will thus deny his motion to dismiss the indictment.

I. PROCEDURAL HISTORY

On June 17, 2020, the grand jury returned a one-count criminal indictment charging Palacios-Arias with illegal reentry. (ECF No. 16.) On August 14, 2020, Palacios-Arias moved to dismiss that indictment, arguing that his prior removal from the United States “was constitutionally defective” because his immigration attorney provided ineffective assistance of counsel during his removal hearing.^[3] (ECF No. 24, at 1.) The Court rejected Palacios-Arias's argument on October 13,2020, finding that no futility exception exempted Palacios-Arias from fulfilling the mandatory statutory requirement of § 1326(d)(2).^[4] (Id. at 2-3.) Palacios-Arias entered a conditional guilty plea on December 2, 2020, and the Court sentenced him to 24 months' imprisonment on January 8, 2021,

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with credit for time served.^[5] (See ECF Nos. 40, 50.) He appealed this Court's denial of his motion to dismiss the indictment the same day. (ECF Nos. 52, 53.)

On April 20,2022, the Fourth Circuit remanded the case to this Court. (See ECF No. 56.) Based on the Supreme Court's holding in United States v. Palomar-Santiago, 141 S.Ct. 1615 (2021), the Fourth Circuit affirmed this Court's holding that no “extrastatutory [futility] exception” to the three requirements of § 1326(d) exists. (Id. at 3.) The Fourth Circuit found, however, that the Court did not address the “distinct argument” that Palacios-Arias's “counsel's ineffectiveness satisfied the requirements to further exhaust any administrative remedies available and deprived him of the opportunity for judicial review.” (Id. at 3-4 (emphasis added).)^[6] On that basis,^[7] the Fourth Circuit vacated the Court's judgment and remanded the case so that this Court could consider the parties' arguments on the ineffective assistance of counsel issue.^[8]

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II. FACTS^[9]

Palacios-Arias was bom in El Salvador in 1996. (See ECF No. 60-1, at 63.) After several members of his family, including his mother, immigrated to the United States, Palacios-Arias moved in with his aunt. (ECF No. 60-2, at 179-80.) In September 2001,^[10] unknown gang members kidnapped Palacios-Arias's then-sixty-one-year-old uncle Miguel Arias.^[11] (ECF No. 60-2, at 173-75, 180-82.) Miguel Arias's family eventually paid a ransom, and the kidnappers released him after holding him hostage for twelve days. (Id. at 174, 177-78, 184.) Miguel Arias did not know exactly who kidnapped him, but he assumed they were affiliated with a local gang.^[12] (Id. at 175.) Palacios-Arias's aunt later found a note on the door to her home asking, “who the boy [(Palacios-Arias)] belonged to.” (Id. at 182.) Around the same time, she saw gang letters and symbols on a wall outside of her home. (Id. at 183.) Fearing for Palacios-Arias's safety, his aunt “decided not to let [Palacios-Arias] go out any more.” (Id. at 182.) In 2003, Palacios-Arias immigrated to the United States. (ECF No. 60-1, at 63.)

Palacios-Arias was still living in the United States when the Department of Homeland Security served him with a notice to appear in removal proceedings on July 10, 2017. (ECF No. 60, at 3.) His family hired a private attorney, Juan Ruiz, to represent him at the removal hearing. (ECF No. 60-2, at 185-86.) Ruiz applied for asylum and withholding of removal on Palacios-Arias's

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behalf in September 2017. (ECF No. 60-1, at 62.) Because Palacios-Arias filed his asylum application more than a year after he entered the United States, it was untimely. See 8 U.S.C. § 1158(a)(2)(B). Notably, a person may apply for asylum beyond the one-year deadline upon a showing of “the existence of changed circumstances which materially affect the applicant's eligibility for asylum.” Id. § 1158(a)(2)(D). Approximately one month before Palacios-Arias's removal hearing, gang members fatally shot his aunt Juana Arias and severely beat her father. (ECF No. 60-1, at 119; ECF No. 60-2, at 184-85.) Ruiz did not argue that the murder constituted “changed circumstances” which rendered Palacios-Arias's asylum application timely. (ECF No. 60, at 17; ECF No. 60-2, at 65.) He did, however, include a newspaper article describing the murder of Juana Arias with the asylum application. (ECF No. 60-1, at 119.) Ruiz also included a court document from Palacios-Arias's uncle's kidnappers' criminal case in Spanish. (Id. at 118.) But he did not ask Palacios-Arias's family to translate the court document into English. (ECF No. 60-2, at 188.)

In preparing for the hearing, Ruiz also spoke with Palacios-Arias's mother and asked her to bring Palacios-Arias's uncle to the removal hearing.^[13] (Id. at 186.) Palacios-Arias's mother and uncle arrived at the removal hearing early and, right before it started, told Ruiz that they were present and ready to testify. (Id. at 187.) After acknowledging their presence and willingness to testify, Ruiz went into the courtroom. (Id.)

Before the proceeding began, the immigration judge swore in a staff Spanish interpreter. (ECF No. 60-2, at 15.) The immigration judge released the interpreter, though, after Palacios-Arias told the immigration judge that he “prefer[ed to] ... continue in English.” (Id. at 17.)

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Shortly thereafter, the immigration judge struck the untranslated “criminal court case document detailing [Palacios-Arias's uncle's] kidnapping.” (ECF No. 60, at 13; ECF No. 60-1, at 80-111; ECF No. 60-2, at 19-20.) Ruiz acquiesced and stated that another exhibit “ma[de] reference to the content of [the stricken] document,” which made “[them] comfortable proceeding” without it. (ECF No. 60-2, at 19-20.) Palacios-Arias testified, but Ruiz never called Palacios-Arias's uncle or mother to the stand. (Id. at 177, 188.) The immigration judge thus only heard “very generally from Mr. Palacios and the short English translation of an article about his aunt's murder that his uncle had been kidnapped, that his family was fearful for his safety because of a note, and that his aunt had been murdered shortly before his removal hearing.” (ECF No. 60, at 14 (citing ECF Nos. 60-1, at 119; ECF No. 60-2, at 24-27).)

At the end of the hearing, the immigration judge denied Palacios-Arias's application for relief and ordered him removed. (ECF No. 60-2, at 62, 64-75.) She considered only his applications for withholding of removal and withholding of removal under the Convention Against Torture (“CAT”) because Palacios-Arias conceded that he untimely filed his asylum application. (Id. at 65.) As to his withholding of removal application, the immigration judge found that Palacios-Arias had not “articulated a particular social group” and that he had not shown “any explanation of a harm that [he] will sustain by some kind of cognizable entity in El Salvador.” (Id. at 7072.) She further emphasized that his “generalized fears of violence, criminal activity, and the unknown” did not suffice to show cognizable harm, and that he also did not show “past persecution.” (Id. at 72.) Finally, although he did not specifically assert that his membership in the Arias family constituted a social group, the immigration judge recognized that she could not grant relief “based on [Palacios-Arias's] speculations that some individuals that are responsible for harming Arias family members would now be interested in harming him.” (Id. at 71.) Under the CAT, she

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found that Palacios-Arias “set forth absolutely no facts or circumstances to show that it is more likely than not that he[ would] be tortured if forced to return to El Salvador.” (Id. at 72.)

Following the hearing, Palacios-Arias hired a new attorney, Nash Joseph Fayad, to timely appeal the immigration judge's decision to the BIA. On appeal, he argued that the immigration judge erred (1) in finding that his proposed social group-“Salvadorian adult males, who were raised and lived in the U.S. since middle childhood”-was not cognizable; (2) by “failing to conduct factfinding regarding alternative protected grounds[, such...