United States v. Ramirez-Ortiz

• Decision Date: 27 February 2019
• Docket Number: Case No.: 3:19-cr-00300-BTM
• Citation: 370 F.Supp.3d 1151
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Jean Carlos RAMIREZ-ORTIZ, Defendant.

370 F.Supp.3d 1151

UNITED STATES of America, Plaintiff,

v.Jean Carlos RAMIREZ-ORTIZ, Defendant.

Case No.: 3:19-cr-00300-BTM

United States District Court, S.D. California.

Signed February 27, 2019

Blair Cameron Perez, US Attorneys Office Southern District of California, San Diego, CA, for Plaintiff.

Federal Defenders, Kara Lee Hartzler, Roxana Sandoval, Federal Defenders of San Diego Inc., San Diego, CA, for Defendant Jean Carlos Ramirez-Ortiz.

Julie A. Blair, Law Offices of Julie Blair, San Diego, CA, for Defendant Juan Francisco Soto-Vallejo.

MEMORANDUM

[ECF No. 9]

Honorable Barry Ted Moskowitz, United States District Judge

I. INTRODUCTION

Juan Carlos Ramirez-Ortiz was charged with violating Title 8, United States Code, Section 1325(a)(2). (ECF No. 1 "Compl."; ECF No. 16). The Government alleged that on January 2, 2019, a Border Patrol Agent intercepted Mr. Ramirez-Ortiz and two other individuals in a remote area of Copper Canyon, located approximately three miles east of the Otay Mesa, California Port of Entry and approximately one mile north of the boundary between the United States and Mexico. (Compl.; ECF No. 12 at 2-3). Mr. Ramirez-Ortiz told the Border Agent he was a citizen of Honduras without permission to be in the United States. (Compl.) Mr. Ramirez-Ortiz was arrested and transported to a Border Patrol Station to be questioned. (Compl.; ECF No. 12 at 3).

On January 3, 2019, Mr. Ramirez-Ortiz appeared before a magistrate judge with his assigned Federal Public Defender and was charged with "knowingly elud[ing] examination and inspection by Immigration Officers" in violation of 8 U.S.C. § 1325(a)(2). (ECF No. 3). On January 23, 2019, Mr. Ramirez-Ortiz moved the Court to dismiss the Complaint. (ECF No. 9). On January 31, 2019, the Court denied Mr. Ramirez-Ortiz's Motion and proceeded with the bench trial. The Court found Defendant guilty of Count 1 of the Misdemeanor Information. (ECF No. 24). The Court stated that it would place its reasons for the denial of the motions in writing.

II. DISCUSSION

Defendant moved the Court to dismiss the complaint based on (1) a violation of equal protection and due process; (2) a violation of his statutory right to apply for asylum; (3) violation of international treaty obligations; and, (4) the unconstitutionality of 8 U.S.C. § 1325. Defendant also requested a jury trial, and an order regarding the elements of 8 U.S.C. § 1325(a)(2). (ECF No. 9).

The Court will address each of Defendant's arguments in turn.

A. Equal Protection

Defendant argues that individuals charged with § 1325 in this district are treated more harshly than other defendants facing equivalent or lesser offenses, violating the Equal Protection Clause of the United States Constitution. (ECF No. 9 at 3-6). The Court disagrees.

Defendant makes the same equal protection arguments that other courts in this district have soundly rejected. See United States v. Chavez-Diaz , 18-mj-20098-AJB, ECF No. 29 (S.D. Cal. Oct. 30, 2018); United States v. Mazariegos-Ramirez , No. 18-mj-222276-WQH, 2019 WL 338923 (S.D. Cal. Jan. 28, 2019). The fact that all defendants charged under § 1325 are aliens does not by itself render these defendants a suspect class. See Plyler v. Doe , 457 U.S. 202, 223, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982) ("Undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a ‘constitutional irrelevancy.’ "); United States v. Mendoza-Hinojosa , 216 F.3d 1085 at *2 (9th Cir. 2000) (explaining the "distinction between statutes which classify based on alienage and statutes which classify based on criminal actions" and that "imposing different rules on immigrants versus citizens does not in itself create a suspect classification"). Defendant has introduced no evidence showing that the scheduling or treatment of § 1325 defendants is based on alienage rather than the offense at issue. And even if the distinction were premised on alienage, "rational basis review would apply and satisfy equal protection analysis." Mazariegos-Ramirez , 2019 WL 338923 at *2. Misdemeanor § 1325 cases are handled together rather than on the CVB calendar because it makes "organizational sense" given the volume of § 1325 cases and divergent jurisdictional underpinnings of CVB court. Chavez-Diaz , 18-mj-20098-AJB, ECF No. 29 at 6; Mazariegos-Ramirez , 2019 WL 338923 at *2. The Court adopts the reasoning of these other courts in this district and rejects Defendant's equal protection argument.

B. Due Process

Defendant argues that a separate § 1325 calendar violates substantive and procedural due process under the United States Constitution. The Court rejects both arguments.

To state a substantive due process claim, the conduct must "shock the conscience and offend the community's sense of fair play and decency." Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Security , 908 F.3d 476, 518 (9th Cir. 2018). "[T]he ‘shock the conscience’ standard erects a high hurdle for would-be claimants." Ms. L. v. U.S Immigration & Customs Enf't , 302 F.Supp.3d 1149, 1166 (S.D. Cal. 2018). Defendant falls short of the required showing. Defendant offers only the conclusory argument that "it ‘shocks the conscience’ for the Government to blatantly deprive § 1325 defendants of the substantial benefits of CVB court while extending those benefits to defendants charged with similar or more serious crimes who have similar or greater risk of flight." (ECF No. 9 at 7 (emphasis in original) ). But the record lacks any evidence of conditions or practices that Ramirez-Ortiz himself experienced that offend notions of human decency, and Defendant does not explain how the process he received—independent hearings and a trial before a district judge—shocks the conscience. See, e.g. , United States v. Mazariegos-Ramirez , No. 18-mj-22276-WQH, 2019 WL 338923, at *2 (S.D. Cal. Jan. 28, 2019) (holding § 1325 prosecution does not violate Due Process Clause). Defendant's procedural due process argument also fails because Defendant has not identified what constitutionally guaranteed process he was denied as an asylum seeker who violated 8 U.S.C. § 1325(a)(2). The Court concludes that Defendant was not deprived of due process.

C. Statutory Right to Apply for Asylum

Defendant alleges that the prosecution violates his statutory right to apply for asylum and therefore must be dismissed. (ECF No. 9 at 9). Defendant cites 8 U.S.C. § 1158(a)(1), which provides: "[a]ny alien who is physically present in the United States or who arrives in the United States [ ] whether or not at a designated port of arrival ... [ ] irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title." Defendant urges the Court to consider that 8 U.S.C. § 1225(b) requires immigration officers to refer an alien for an asylum interview if he or she expresses "an intention to apply for asylum ... or a fear of persecution," even if the officer determines the alien is otherwise inadmissible. However, Defendant manufactures hypothetical scenarios instead of showing how he was personally deprived of this purported right to apply for asylum. (ECF No. 9 at 9). Moreover, a plain reading of the statutes suggests that they are not in conflict and that Congress chose not to grant immunity to asylum seekers who face criminal prosecution under 8 U.S.C. § 1325(a)(2). (ECF No. 12 at 9). The Court concludes that any statutory right to apply for asylum has not been violated.

D. International Treaties

Defendant argues that his prosecution violates his rights under Article 31(1) of the United Nations Convention Relating to the Status of Refugees ("the Convention"). (ECF No. 9 at 10). Although the United States did not sign the Convention, it acceded to the 1967 Protocol Relating to the Status of Refugees (the "Protocol"). See Khan v. Holder , 584 F.3d 773, 783 (9th Cir. 2009). "The Protocol bound parties to comply with the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees." I.N.S. v. Stevic , 467 U.S. 407, 416, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) (internal citations omitted). Article 31(1) provides:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees, who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

However, Defendant's reliance on Article 31(1) of the Protocol to challenge his prosecution is misplaced. See, e.g. , United States v. Velasquez-Luna , No. 18-mj-11463-WQH, 2019 WL 338947 at *2 (S.D. Cal. Jan. 28, 2019) ("Defendant cannot rely on Article 31(1) of the Protocol to challenge his prosecution."). The Protocol is not self-executing and is therefore not domestically enforceable. Khan , 584 F.3d at 783 ; see also United States v. Malenge , 294 F.Appx. 642, 644 (2d. Cir. 2008) (holding asylum seeker's criminal prosecution for entering the United States using a false passport and identity was not barred by the Protocol because the Protocol "did not provide [defendant] with any judicially enforceable rights"). Because Defendant has no domestically enforceable rights under the Protocol, this argument fails. See Velasquez-Luna , 2019 WL 338947 at *2 ; United States v. Guevara-Medina , No. 18-mj-9443-BTM, 2018 WL 3970092 (S.D. Cal. Aug. 29, 2018) ; United States v. Munoz , 2017 WL 4922047 at *3 (D. Ariz. Oct. 30, 2017) (holding "[d]efendant acquired no rights under the 1967 Protocol, including its incorporation of Article 31(1) of the United Nations Convention Relating to the Status of Refugees" and "accordingly cannot rely on these international agreements as a basis for dismissing his indictment").

The Court notes that even if...