United States v. Vargas-Molina, Case No. 19-cr-20067

• Decision Date: 26 July 2019
• Docket Number: Case No. 19-cr-20067
• Citation: 392 F.Supp.3d 809
• Parties: UNITED STATES of America, Plaintiff, v. Leopoldo VARGAS-MOLINA, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

392 F.Supp.3d 809

UNITED STATES of America, Plaintiff,

v.Leopoldo VARGAS-MOLINA, Defendant.

Case No. 19-cr-20067

United States District Court, E.D. Michigan, Southern Division.

Signed July 26, 2019

Susan E. Fairchild, U.S. Attorney's Office, Detroit, MI, for Plaintiff.

Federal Defender, Colleen P. Fitzharris, Federal Defender Office, Detroit, MI, for Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S FIRST MOTION TO DISMISS THE INDICTMENT [32] AND DENYING HIS SECOND MOTION TO DISMISS THE INDICTMENT AS MOOT [33]

JUDITH E. LEVY, United States District Judge

Defendant Leopoldo Vargas-Molina was indicted for unlawful reentry under 8 U.S.C. § 1326(a). He filed two motions to dismiss the indictment, both of which go to the validity of his underlying removal order from 2011. Vargas-Molina relies upon § 1326(d) to collaterally attack that order. And in his second, he argues that the Immigration Judge ("IJ") lacked jurisdiction to conduct the removal hearing, rendering the order of removal void ab initio . For the reasons set forth below, Vargas-Molina's 2011 removal order is invalid. His first motion to dismiss is granted, and his second is denied as moot.

I. Background

Vargas-Molina is forty-nine years old. He is a native of Mexico and has resided in the United States for the better part of nineteen years. (ECF No. 32-6, PageID.160.) He has three children, all of whom live here in this country. (Id. at PageID.161–62.) Two are U.S. citizens. (Id. at PageID.162.) Vargas-Molina first came to the United States in 1994. (Id. ) He returned to Mexico for three years and then returned in 1997. (Id. at PageID.160, PageID.167.)

Thirteen years later, Vargas-Molina had his first contact with law enforcement. He received two citations in Tennessee on March 21, 2010. At 2:13 a.m., Vargas-Molina was cited by a Tennessee State Trooper for "simple possession of a sch[edule two]" substance, cocaine. (Id. at PageID.156.) The citation notes that Vargas-Molina was a passenger in a vehicle that was pulled over and that the police officer "observed [him] reaching down several times in the attempt to hide something." (Id. ) In a search that the driver consented to, the officer found two baggies of cocaine under the floor mat on the passenger side of the car. (Id. ) Then at 6:03 a.m. that same day, Vargas-Molina was ticketed by Brentwood police officers in Williamson County, Tennessee for driving with a suspended license. (Id. at PageID.157.) In 2009, his license was suspended for "a[n] equipment violation and failure to provide insurance out of ... Michigan." (Id. ) A hearing in Tennessee was set for April 1, 2010, to address Vargas-Molina's two citations, and it is undisputed that he did not appear, resulting in an outstanding warrant for these citations. (Id. at PageID.156–57 (setting a hearing date for April 1, 2010); ECF No. 32-7, PageID.178; ECF No. 32-8, PageID.181.)

Almost a year later, Vargas-Molina was arrested by Customs and Border Patrol ("CBP") for unlawful presence in the United States, and he was detained by CBP on March 12, 2011. (Id. at PageID.176.) On March 21, 2011, he appeared with a group of other individuals via video conference from Calhoun County, Michigan before IJ Hacker in Detroit. (ECF No. 32-2, Disc 1, Track 1, beginning at 0:00.) Vargas-Molina's primary language is Spanish, and an interpreter was present (id. ), although it is unclear if the interpreter was in Detroit or present with the noncitizens in Calhoun County. During this hearing, IJ Hacker addressed the group, explaining that they were in deportation proceedings, that she would address them each individually, and that they have the right to hire an attorney. (ECF No. 32-2, Disc 1, Tracks 1–2.) She also stated that they have a right to present evidence, to question government witnesses, and to look at any evidence presented by the government, but she would ultimately decide what evidence could become part of the record. (ECF No. 39-1, PageID.336.) Finally, IJ Hacker informed each noncitizen that they could appeal her decision, and it appears that they may have received a document explaining how to do so.¹ (Id. ("The officer there will hand you a list which explains more about your rights to appeal[.] This document tells you generally how to appeal.").) Each noncitizen affirmed that he or she understood his or her rights and confirmed some basic facts about their citizenship, entries, etc. (ECF No. 32-2, Disc 1, Tracks 1–2; ECF No. 39-1, PageID.337–44.)

IJ Hacker proceeded to wind her way through the group, and when she addressed Vargas-Molina, she noted that he had an outstanding warrant but was eligible for cancellation of removal, a form of relief from removal. (ECF No. 39-1, PageID.346.) She explained what Vargas-Molina would have to show to receive this relief: that he was physically present in the United States since March 12, 2000, and that his "children would suffer exceptional ... hardship if [he] were to be deported." (Id. ) He confirmed that he would like to apply for cancellation of removal and received an application form. (Id. ) But IJ Hacker never raised voluntary departure with Vargas-Molina, which would soon become his primary claim for relief from removal. Although she raised voluntary departure as a possibility for other individuals in the group, she never explained the legal standard for voluntary departure; she simply granted it as to those two people. (ECF No. 32-2 ; Disc 1, Track 6, beginning at 1:00.)

On March 31, 2011, the hearing continued before IJ Nettles. (Id. at Disc 1, Track 7.) The audio recording of that hearing is available. (ECF No. 43, PageID.397.) Again, Vargas-Molina appeared remotely from Calhoun County Jail and an interpreter was present. (Id. ) He was not represented by counsel. (Id. ) During the hearing, the defendant explained that he did not fill out his cancellation of removal application and needed more time to gather the information required by the application. (ECF No. 39-1, PageID.357.) IJ Nettles continued Vargas-Molina's case but warned him that he would only receive one more chance to complete his application or else she would consider it abandoned. (Id. ) She stated, "Alright [sic] sir, I am going to give you until April 7th for cancellation or the alternative is voluntary departure[.]" (Id. at PageID.358.) She said nothing else besides this passing mention of voluntary departure to Vargas-Molina.

On April 7, 2011, Vargas-Molina once more appeared remotely from Calhoun County Jail, an interpreter was present, and he was again unrepresented by counsel. (Id. at PageID.361.) He told IJ Nettles that he was still unable to fill out his application for cancellation of removal because he was waiting for his brother to get certain documents to him as "proofs." (Id. ) In response to her questions, he explained that he filled out the questions to the best of his ability but needed the documents to finish the application. (Id. at PageID.362–63.) After reprimanding Vargas-Molina for not having his brother read the contents of the documents to him over the phone, the IJ set his case for trial and gave him a week to finish his application. (Id. )

Then, IJ Nettles asked Vargas-Molina if he had filled out his fee waiver request, and the first of several confusing exchanges ensued:

IJ: Did you fill out the application sir?

IJ: The waiver? The application fee waiver, did you fill out the waiver request?

Defendant: Well, ah,

Defendant: If it is not filled in then I don't want to appeal anything.

IJ: I didn't ask you about an appeal sir,

The IJ then reiterated that she would set his case for trial and Vargas-Molina would have one more chance to fill out his application for cancellation of removal. (Id. at PageID.363–66.)

Then IJ Nettles asked if Vargas-Molina wanted her to set his case for trial and abandon his application for cancellation of removal on the spot. (Id. at PageID.366–67.) Vargas-Molina asked what would happen if he decided not to pursue his case, and IJ Nettles explained:

IJ: I would either order you removed, or if you can somehow demonstrate otherwise [sic] qualify for voluntary departure, I would, if you are eligible for it, I would give you voluntary departure, but you have to make arrangements from inside the jail to purchase your ticket.

Defendant: Okay, then I would like to get volunteered.

IJ: Alright [sic] sir, so at this point and time, you do not, do you want to file your cancellation application yes or no. I need you to answer me clearly.

(Id. at PageID.367.) Vargas-Molina, apparently confused by the IJ's terminology, responded:

Defendant: Yes, I want to cancel it.

IJ: No, sir when you say cancel it, you mean that you wish, you don't want to file it, you want to stop your case, you want to stop right now and just ask for voluntary departure? Is that what you mean?

Defendant: Yes, I would like to ask for voluntary departure if you can give it to me.

(Id. at PageID.367–68.) The IJ offered no other explanation of voluntary departure.

Then IJ then swore Vargas-Molina to tell the truth in a rapid-fire oath, and began to question him about his criminal history:

IJ: Sir, have you ever been convicted of any kind of crime sir?

Defendant: Convicted, no, no.

IJ: What have you been arrested for? Or charged with?

Defendant: I have not been arrested.

IJ: For what?

Defendant: Yes, the police has stopped me, but I have not been arrested.

(Id. at PageID. 368–71.) Vargas-Molina truthfully stated that he had been stopped in Michigan because a tail light was out. (Id. at PageID.371.) He volunteered that he was "stopped in Tennessee also." (Id. ) The IJ asked why, and he explained that he was not driving, but the car was stopped because the driver crossed over the line. (Id. )

Then, the government attorney asked if he had been arrested for possession of cocaine and for driving on a suspended license, and again, Vargas-Molina honestly answered that he had not been arrested. (Id. at PageID.371–72.) After hearing these truthful answers, the...