United States v. Vasquez-Hernandez, No. 3:17–CR–02660–KC

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtJudge Kathleen Cardone
Citation314 F.Supp.3d 744
Parties UNITED STATES of America, Plaintiff–Appellee v. Blanca Nieve VASQUEZ–HERNANDEZ, Elba Luz Dominguez–Portillo, Maynor Alonso Claudio Lopez, Jose Francis Yanes–Mancia, Natividad Zavala–Zavala Defendant–Appellants
Decision Date10 June 2018
Docket Number3:17–CR–02664–KC,Consolidated case Nos. 3:17–CR–02661–KC,3:17–CR–02662–KC,No. 3:17–CR–02660–KC,3:17–CR–02663–KC

314 F.Supp.3d 744

UNITED STATES of America, Plaintiff–Appellee
v.
Blanca Nieve VASQUEZ–HERNANDEZ, Elba Luz Dominguez–Portillo, Maynor Alonso Claudio Lopez, Jose Francis Yanes–Mancia, Natividad Zavala–Zavala Defendant–Appellants,

No. 3:17–CR–02660–KC
Consolidated case Nos. 3:17–CR–02661–KC
3:17–CR–02662–KC
3:17–CR–02663–KC
3:17–CR–02664–KC

United States District Court, W.D. Texas, El Paso Division.

Signed June 10, 2018


314 F.Supp.3d 749

Douglas Campbell Rennie, Noemi Vania Lopez, U.S. Attorney's Office, Western District of Texas, El Paso, TX, for Plaintiff–Appellee.

Sergio Garcia, Federal Public Defender, El Paso, TX, for Defendant–Appellants.

ORDER

Judge Kathleen Cardone

This consolidated appeal acutely illustrates the difficult and controversial nature of our country's immigration laws and their enforcement. Appellants are five asylum seekers who were apprehended shortly after entering into the United States with their minor children. Ultimately, they were separated from the children, prosecuted by the government for the misdemeanor offense of improper entry under 8 U.S.C. § 1325(a), and found guilty by the Magistrate Court after separate trials. On appeal, Appellants challenge only their criminal convictions. Although Appellants' separation from their children is a cause of great concern not only for Appellants but also for many in public at large, the soundness of the government's policies regarding arriving asylum seekers and their minor children is not before the Court in this appeal. Because this Court finds no error in the proceeding below, the judgment of the Magistrate Court is affirmed.

I.

Appellants are citizens of El Salvador and Honduras. Each was apprehended by agents from United States Customs and Border Protection ("CBP") in unrelated incidents between October 21 and October 23, 2017, moments after they crossed into

314 F.Supp.3d 750

the United States from Mexico at a place that was not designated as a port of entry. At the time of their apprehension, Appellants were not alone; each was traveling with their minor child or grandchild.1

During initial processing by CBP, Appellants sought asylum based on a fear of persecution in their home countries. Shortly after, Appellants were charged by complaint with improper entry of an alien under 8 U.S.C. § 1325(a). In addition, because Appellants did not possess documentation establishing a familial relationship with the minor children, CBP concluded that they were unaccompanied minors and transferred custody of the children to the Office of Refugee Resettlement ("ORR").

A.

At each of their initial appearances, the Magistrate Judge asked Appellants whether they were traveling with a minor child or sibling and, if so, whether the government had provided any information regarding the child's whereabouts or well-being. Initial Appearance Tr. at 7–8, ECF No. 14.2 Appellants responded that they had received little or no information regarding their children. Id. Concerned about the legal impact that Appellants' separation from the children could have on the criminal proceedings, the Magistrate Judge scheduled a status conference to discuss the issue with counsel.

At the status conference, the Magistrate Judge explained that he had noticed a marked increase in cases where migrants that claimed to have been accompanied by their minor children were charged with improper entry and separated from the children at their time of arrest. Status Conference Tr. at 2–3, ECF No. 54. Similar to Appellants, the defendants in those cases often told the Court that they were kept in the dark concerning their children's whereabouts and well-being. Id. The Magistrate Judge went on to express concern that, should Appellants consider pleading guilty, their pleas might be susceptible to a future challenge as involuntary. Id. at 4–5. Given Appellants' inability to communicate with their children during the course of the criminal proceedings, the Magistrate Judge posited that Appellants might be induced to plead guilty based solely on their understandable desire to reunite with the children as quickly as possible. Id.

In response to the Magistrate Court's request for briefing, counsel for Appellants informed the Court that he was already preparing a dispositive motion for each of Appellants' cases that would address the issues raised by the Court. Id. at 9. Agreeing that Appellants were similarly situated as to the Magistrate Court's concerns, the government consented to consolidate Appellants' cases for the purposes of the briefing. Id. at 10. Following the status

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conference, the Magistrate Court entered a briefing schedule, and Appellants filed a motion to dismiss several days later. See generally Mot. to Dismiss, ECF No. 13.

B.

Appellants' motion essentially raised four arguments in support of dismissal. First, Appellants argued that the government's actions in these cases were inconsistent with previous expressions of governmental policy relating to families detained for violating immigration laws. Id. at 3–8. In essence, Appellants asserted that various federal entities have expressed a preference that families remain unseparated as they navigate immigration-related proceedings, and that this preference runs counter to "the government's mechanism of separating the family unit and simultaneously charging and prosecuting [Appellants] with a § 1325 crime." Id. at 8.

Second, Appellants argued that the government violated their right to due process by charging them with improper entry before resolving their asylum claims. Specifically, Appellants characterized the criminal charges as "a violation of due process because [Appellants] are being deprived of an opportunity to explore and exhaust any administrative remedy they may have with respect to the issue of bond and possible refugee or asylum status."Id. at 9. Appellants further elaborated that the charges were "premature" because, should Appellants "qualify for refugee or asylum status, they cannot be prosecuted for being illegally in this country." Id. at 10.

Third, Appellants asserted an additional due process violation based on the conditions surrounding their potential guilty pleas. Id. at 10–13. Echoing the concerns expressed by the Magistrate Court, Appellants explained that they were "extremely worried about the safety and well-being of their minor children and want to put these § 1325 charges behind them as quickly as possible." Id. Consequently, given that Appellants' children were being held "in unknown places and under unknown conditions," Appellants asserted that they were being "induce[d] ... to plead guilty while under duress." Id. at 12.

And fourth, Appellants argued that, taken together, the government's actions implicated the outrageous government conduct doctrine. Id. at 14. In Appellants' view, the steps taken by the government—i.e. separating Appellants from their children, prosecuting Appellants instead of allowing them to proceed with their asylum claims, and coercing them to plead guilty by withholding information about the well-being of the children—were so cumulatively egregious that the government forfeited its right to prosecute these cases. Id.

C.

After Appellants filed their motion to dismiss, the government filed a response. See generally Resp., ECF No. 17. In its response, the government asserted, inter alia, that the Magistrate Court lacked jurisdiction over issues unrelated to Appellants' criminal prosecution, that there was no basis to dismiss the indictments, that Appellants failed to demonstrate any violation of due process, and that the expressions of federal policy relied on by Appellants are applicable only in the context of civil removal proceedings. See generally id. The Magistrate Court then held an evidentiary hearing where both sides largely re-urged many of the arguments made in their filings. That said, Appellants also appeared to raise two additional arguments touching on their right to due process.

First, after reiterating that they should be allowed to pursue their asylum claims prior to any criminal prosecution, Appellants asserted: "So going to trial ... it's also a violation of due process. Why? Because we are missing the most important

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thing, the material witnesses, the children. They don't have them here .... So even going to trial would be a violation of due process." Evidentiary Hr'g Tr. at 10, ECF No. 41.

And second, while addressing the government's assertion that separating the children was lawful and consistent with the government's obligations, Appellants argued: "They are using that mechanism to terminate parental rights .... Because these clients are going to plead guilty, they are going to be deported, and they are not guaranteeing to keep track of their children .... And that is terminating parental rights." Id. at 13.

In response, the government maintained that Appellants' asylum claims were not relevant to their criminal prosecution, that "pressures related to family concerns" do not render a...

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1 practice notes
  • Snively v. Peak Pressure Control, LLC, No. MO:15–CV–00134–DC
    • United States
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1 cases
  • Snively v. Peak Pressure Control, LLC, No. MO:15–CV–00134–DC
    • United States
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    • June 30, 2018
    ...store and employee manuals, payroll records, declarations prepared by opt-in plaintiffs, survey responses completed by opt-in 314 F.Supp.3d 744plaintiffs, and employee personnel records. Id. at 570. Post-trial, and after considering the full record, the court reached "the inescapable conclu......

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