United States v. Silvestre-Gregorio

Decision Date03 June 2019
Docket NumberNo. 2:18-CR-00155-JRG-CLC,2:18-CR-00155-JRG-CLC
PartiesUNITED STATES OF AMERICA v. PEDRO SILVESTRE-GREGORIO
CourtU.S. District Court — Eastern District of Tennessee
MEMORANDUM OPINION AND ORDER

This matter is before the Court on Defendant's Motion to Dismiss, or Alternatively to Release Defendant on Pretrial Conditions of Release Pending a Final Decision [Doc. 20], the United States' Response [Doc. 21], Defendant's Supplemental Memorandum [Doc. 28], the United States' Response to Defendants' Supplemental Memorandum [Doc. 31], the United States' Post-Hearing Memorandum [Doc. 39], Defendants' Post-Hearing Memorandum [Doc. 40], and Defendant's Supplement to Post-Hearing Memorandum [Doc. 42]. For the reasons herein, the Court will deny Defendant's motion.

I. BACKGROUND

In 1996, Defendant Pedro Silvestre-Gregorio, at roughly the age of eleven, fled his native country of Guatemala for Mexico, to escape poverty and violence. [Hr'g Tr., Doc. 37, at 82:7-12; 83:16-25; 84:1-2].1 As a native of Guatemala, he spoke "Chuj," [id. at 28:23-26], a regional dialect of northern Guatemala, [id. at 84:19-22]. According to Mr. Silvestre-Gregorio, most of the people in the area where he grew up in Guatemala spoke Chuj; few spoke Spanish. [Id. at 85:16-19]. After defecting to Mexico, where the locals spoke Spanish, he learned "a little bit of Spanish," [id. at 86:4-12], including "how to ask for food, how to call somebody, andhow to say good morning." [Id. at 90:2-3]. He sold coffee and tortillas and cleaned windows to earn a living in Mexico, and none of these activities, he claims, required much communication in Spanish with others. [Id. at 85:20-25; 86:1; 87:21-24; 89:23-25; 90:1-3].

In February 2001, after spending four or five years in Mexico, he crossed the border into the United States, with the help of a boy from Mexico. [Id. at 85:20-21; 108:6-9; Arrest Warrant, Doc. 21-2, at 3]. After he entered the United States, federal agents apprehended him. [Hr'g Tr. at 88:9-11; 89:1-3; Arrest Warrant at 3]. He admittedly lied to these agents, telling them that he was from Mexico rather than Guatemala because he did not want them to send him back to Guatemala. [Hr'g Tr. at 88:9-25].

The United States Immigration and Naturalization Service (INS) initiated removal proceedings against Mr. Silvestre-Gregorio. [Notice to Appear, Doc. 21-2, at 1-2]. In a "Notice to Appear," INS alleged he was illegally present in the United States and ordered his appearance before an immigration judge in Houston, Texas. [Id. at 1]. The notice to appear has a section titled "Certificate of Service," which contains a fingerprint, a handwritten "X" affixed to a line labeled "Signature of Respondent if Personally Served," and a sentence stating that "the alien was provided oral notice in the Spanish language":

Image materials not available for display.

[Id. at 2].

INS also prepared a "Notice of Rights and Request for Disposition" [Doc. 21-3], which has the name "Lopez-Abarca, Jesus" at the head and states in part:

NOTICE OF RIGHTS

You have been arrested because immigration officers believe that you are illegally in the United States. You have the right to a hearing before the Immigration Court to determine whether you may remain in the United States. If you request a hearing, you may be detained in custody or you may be eligible to be released on bond, until your hearing date. In the alternative, you may request to return to your country as soon as possible, without a bearing.
You have the right to contact an attorney or other legal representative to represent you at your hearing, or to answer any questions regarding your legal rights in the United States. Upon your request, the officer who gave you this notice will provide you with a list of legal organizations that may represent you for free or for a small fee. You have the right to communicate with the consular or diplomatic officers from your country. You may use a telephone to call a lawyer, other legal representative, or consular officer at any time prior to your departure from the United States.

[Notice of Rights at 2]. This notice also contains a section titled "Request for Disposition," which shows a handwritten "X" next to a box that states:

I admit that I am in the United States illegally, and I believe I do not face harm if I return to my country. I give up my right to a hearing before the Immigration Court. I wish to return to my country as soon as arrangements can be made to effect my departure. I understand that I may be held in detention until my departure.

[Id. at 1]. Another handwritten "X" and the words "(Alien's Mark)" appear on a signature line below this paragraph. [Id.]. Lastly, the notice has a section titled "Certification of Service," and it bears an INS officer's signature and states the notice was "read to subject . . . in the Spanish language." [Id.].

Despite the handwritten "X" alongside the language dealing with the waiver of a hearing in this notice, Mr. Silvestre-Gregorio, in March 2001, appeared before an immigration judge in Houston, along with other respondents. [Immigration J. Order, Doc. 20-1, at 1; Audio: Removal Hr'g, Ex. 3, 4:04-09 (March 22, 2001)]. At the time, Mr. Silvestre-Gregorio was still a minor,of the age of sixteen, [Hr'g Tr. at 82:7-8; Audio: Removal Hr'g at 2:06-21], and a representative from Associated Catholic Charities, Mr. Peter Stempien, was present with him, [Notice of Appearance, Doc. 21-6; Audio: Removal Hr'g at 0:36-1:00].2 A Spanish-speaking interpreter was also present at the hearing and, throughout the hearing, he translated all the immigration judge's statements and questions from English to Spanish. [Audio: Removal Hr'g at 1:43-49].

The immigration judge began the hearing by asking Mr. Silvestre-Gregorio, through the interpreter, to state his name, and Mr. Silvestre-Gregorio stated his name. [Id. at 2:02-16]. The immigration judge next asked Mr. Silvestre-Gregorio for his age, and he stated his age. [Id. at 2:17-21]. The immigration judge then addressed all the respondents at once, explaining to them, through the interpreter, the nature of the proceedings, which he described as "removal proceedings." [Id. at 4:10-16]. He acknowledged that INS initiated the proceedings by filing a notice to appear for each respondent, and he noted that the interpreter had verified that each respondent received a notice to appear. [Id. at 4:17-39]. Next, he checked with Mr. Stempien to see if he received a copy of the notice to appear on Mr. Silvestre-Gregorio's behalf, [id. at 2:16-21], and he answered, "yes," [id. at 4:40-47].

From there, the immigration judge highlighted the importance of the notice to appear, pointing out to each respondent that it "contains all the reasons that the Immigration Service believes you are subject to removal." [Id. at 4:50-5:07]. He informed the respondents that the proceedings were "a way of removing a person from the United States," [id. at 5:48-57], and he summarized INS's charges against them in the notices to appear—namely INS's position that they were subject to removal because they are illegally present in the United States, [id. at6:30-56]. He then asked Mr. Silvestre-Gregorio if he understood the nature of the proceedings as he described them to him. [Id. at 7:54-8:03]. His answer was "yes." [Id. at 8:04-05].

Next, the immigration judge explained the respondents' legal rights, including their right to present documents, evidence, and witnesses; their right to challenge any documents that INS introduced and used against them; their right to ask witnesses questions to ensure they were telling the truth; and their right to appeal a decision that they did not like. [Id. at 8:12-9:24]. He pointed out, specifically, that an "appeal" means an opportunity for them to have a higher court review his decisions "to make sure there is no mistake." [Id. at 9:24-34]. He then inquired as to whether Mr. Silvestre-Gregorio understood his legal rights as he described them to him, and Mr. Silvestre-Gregorio's response was "yes." [Id. at 9:36-52].

Lastly, the immigration judge explained the respondents' right to counsel; he informed them that they could have time to talk with an attorney or hire an attorney at little or no cost to them. [Id. at 9:56-10:58]. When he asked Mr. Silvestre-Gregorio whether he "understand[s] that he could have some time to look for an attorney if he wanted [one]," Mr. Silvestre-Gregorio's response was "yes." [Id. at 11:05-18]. He then asked Mr. Silvestre-Gregorio whether he would like more time to retain an attorney, and Mr. Silvestre-Gregorio paused for about eight seconds before declining the offer for more time, prompting the immigration judge to present follow-up questions to him:

Immigration Judge: Jesus, do you want more time [to retain an attorney], or do you want to finish your case today?
Mr. Silvestre-Gregorio: Yes.
Immigration Judge: Does that mean you want more time or does that mean you want to finish today?
Mr. Silvestre-Gregorio: . . .Immigration Judge: Do you understand the question?
Mr. Silvestre-Gregorio: . . .
Immigration Judge: Do you understand this interpreter?
Mr. Silvestre-Gregorio: Yes.
Immigration Judge: Okay. So the question is do you need some more time or . . . [unintelligible]?
Mr. Silvestre-Gregorio: No.
Immigration Judge: So you want to finish today?
Mr. Silvestre-Gregorio: Yes.

[Id. at 11:32-12:24]. Several minutes later, after addressing some matters involving the other respondents, the immigration judge returned his focus to Mr. Silvestre-Gregorio, asking him if he had questions about anything he said up till now. [Id. at 18:24-33]. Mr. Silvestre-Gregorio responded by saying that he has no questions, and the immigration judge transitioned into a one on-one interaction with him. [Id. at 18:34].

The immigration judge asked Mr. Silvestre-Gregorio if he was prepared to represent himself. [Id. at 19:31-33]. When he responded, "yes," [id. at 19:34-36], the immigration judge placed him under oath: "Do...

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