United States v. Vasquez-Hernandez

• Decision Date: 08 May 2019
• Docket Number: No. 18-50492,18-50492
• Citation: 924 F.3d 164
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Blanca Nieve VASQUEZ-HERNANDEZ, Defendant - Appellant United States of America, Plaintiff - Appellee v. Elba Luz Dominguez-Portillo Defendant - Appellant United States of America, Plaintiff - Appellee v. Maynor Alonso Claudino Lopez, Defendant - Appellant United States of America, Plaintiff - Appellee v. Jose Francis Yanes-Mancia, Defendant - Appellant United States of America, Plaintiff - Appellee v. Natividad Zavala-Zavala, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

924 F.3d 164

UNITED STATES of America, Plaintiff - Appellee

v.Blanca Nieve VASQUEZ-HERNANDEZ, Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Elba Luz Dominguez-Portillo Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Maynor Alonso Claudino Lopez, Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Jose Francis Yanes-Mancia, Defendant - Appellant

United States of America, Plaintiff - Appellee

v.Natividad Zavala-Zavala, Defendant - Appellant

No. 18-50492

United States Court of Appeals, Fifth Circuit.

FILED May 8, 2019

Joseph H. Gay, Jr., Assistant U.S. Attorney, Mark Randolph Stelmach, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, for Plaintiff-Appellee.

Sergio Garcia, Maureen Scott Franco, Federal Public Defender, Federal Public Defender's Office Western District of Texas, San Antonio, TX, for Defendants-Appellants.

Before KING, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

In unrelated incidents between October 21, 2017 and October 23, 2017, Appellants Blanca Nieve Vasquez-Hernandez, Elba Luz Dominguez-Portillo, Maynor Alonso Claudino-Lopez, Jose Francis Yanes-Mancia, and Natividad Zavala-Zavala were each apprehended by Customs and Border Protection (CBP) soon after entering the United States from Mexico. Appellants, citizens of Honduras and El Salvador, were each accompanied by a minor child (in one appellant’s case, a grandchild).¹ Appellants stated to CBP during initial processing that they feared persecution in their home countries. They were arrested, charged with misdemeanor improper entry under 8 U.S.C. § 1325(a), and detained in El Paso. The government did not detain the children with their parents, but instead transferred the children to the custody of the Office of Refuge Resettlement (ORR) in the U.S. Department of Health and Human Services.²

Before July 2017, children were typically only referred to ORR when they entered without a parent or guardian. U.S. DEP’T HEALTH HUMAN SERVS. OFFICE OF INSPECTOR GENERAL , Separated Children Placed in Office of Refugee Resettlement Care , 3 (Jan. 2019), https://oig.hhs.gov/oei/reports/oei-BL-1800511.pdf. Before July 2017, "some children [were] referred to ORR after being separated by DHS from a parent ... with whom the child arrived. Historically, these separations were rare and occurred because of circumstances such as the parent’s medical emergency or a determination that the parent was a threat to the child’s safety." Id. However, between July and November 2017, the El Paso sector of CBP "implemented new policies that resulted in 281 individuals in families being separated." Id. It was during this period that Appellants arrived with their children. Appellants’ immigration forms indicate that they were separated from their children not because of a medical emergency or safety concern, but because of the parents’ impending prosecutions.

A magistrate judge convicted and sentenced Appellants after bench trials where Appellants stipulated to facts establishing all the elements of a § 1325(a) offense. The district court affirmed. In this consolidated appeal, Appellants argue that (1) they should not have been criminally prosecuted because they sought asylum, and (2) being separated from their children rendered their convictions constitutionally infirm.

Appellants have never disputed the sufficiency of the government’s evidence. As the district court explained in its careful and detailed order affirming the convictions, "the soundness of the government’s policies regarding arriving asylum seekers and their minor children is not before the Court in this appeal." We agree and affirm.

I

Appellants made their initial appearances before the same magistrate, who appointed a Federal Public Defender to represent them. On November 7, 2017, Appellants filed a consolidated motion to dismiss the criminal complaints.³ They contended that the § 1325(a) charges were premature because their asylum claims had not yet been processed. They also argued that separation from their children would render any guilty plea involuntary, and constituted "outrageous" conduct requiring dismissal of the complaints. Appellants confirmed that they were "not seeking that the court analyzes [sic] the strength of the government’s § 1325 cases against them ... [T]he parent-defendants’ guilt or innocence under § 1325 is not at issue on this motion." On November 9, 2017, the government offered Appellants plea agreements with sentences of time served. Appellants did not accept.

The magistrate set a hearing on the motion to dismiss for November 27, 2017, and set bench trials for December 1, 2017.⁴ At the hearing on the motion to dismiss, Appellants raised two new arguments. First, they argued that because their children were material witnesses, going to trial without the children present would violate due process. Second, Appellants contended that conviction and deportation would unconstitutionally terminate their parental rights. At the end of the hearing, the magistrate denied the motion to dismiss.⁵

At their individual bench trials, Appellants all stipulated to facts and evidence establishing all the elements of a § 1325(a) offense. Appellants did not testify and did not present any affirmative defenses. The magistrate found Appellants guilty and sentenced each to one year of non-reporting probation. Appellants moved for reconsideration, which the magistrate denied on January 12, 2018.

Appellants’ appeals to the district court were consolidated. While the appeal was pending, four of the five (all but Vasquez-Hernandez) were found inadmissible under 8 U.S.C. § 1182 and deported, apparently without their children. Vasquez-Hernandez was released on immigration bond on February 21, 2018. On June 11, 2018, the district court affirmed the convictions. In a detailed order, the district court examined Appellants’ arguments and found no basis for reversing their convictions. This timely appeal followed.

II

This appeal concerns the district court’s affirmance of the misdemeanor convictions and sentences imposed by the magistrate. We therefore "review the magistrate judge’s findings of fact for clear error and conclusions of law de novo." United States v. Hollingsworth , 783 F.3d 556, 558 (5th Cir. 2015).

Appellants seek to challenge their convictions on six grounds: (1) separation from their children was pre-trial punishment that violated due process; (2) the convictions violated the Eighth Amendment because they resulted in Appellants’ deportation and continued separation from their children; (3) separation was outrageous government conduct and the criminal complaints should have been dismissed; (4) separation violated Appellants’ rights to exculpatory evidence; (5) separation deprived Appellants of a fair trial; and (6) separation violated Appellants’ rights against self-incrimination. None of these arguments is persuasive.

A. Pre-trial punishment

Appellants say that because they "were bona fide asylum seekers ," it was impermissible pre-trial punishment for the government to detain them pending criminal prosecution and thereby separate them from their children. Yet Appellants do not challenge the government’s contention that once the parents were arrested and detained in adult facilities, their children became "unaccompanied" for purposes of § 1232(b)(3). See 6 U.S.C. § 279(g)(2) (defining "unaccompanied alien child" in relevant part as a child under 18 years of age with "no lawful immigration status," for whom "no parent or legal guardian in the United States is available to provide care and physical custody").

Instead, Appellants respond that the government’s decision to initiate criminal proceedings was unjustifiable because they were "bona fide asylum seekers." Relying on 8 U.S.C. § 1225(b)(1)(A)(ii), Appellants assert that they had rights to an asylum hearing before any criminal proceedings could be initiated, and that if they had been granted asylum, they would have been immunized from prosecution for improper entry. Section 1225(b)(1)(A)(ii) provides, "If an immigration officer determines that an alien ... is inadmissible ... and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer." (emphasis added). Emphasizing that "shall" is mandatory, Appellants conclude that "[s]eparating Appellants from their minor children was a restriction or condition not reasonably related to Congressional goals regarding asylum law and it punished Appellants."

Nothing in § 1225(b)(1)(A)(ii) prevents the government from initiating a criminal prosecution before or even during the mandated asylum process. Nor have Appellants shown that qualifying for asylum would be relevant to whether they improperly entered, since § 1325(a) applies to "[a]ny alien" who "enters or attempts to enter the United States at any time or place other than as designated by immigration officers." Appellants stipulated that they were aliens and entered the United States at a place that was not a port of entry. Qualifying for asylum under 8 U.S.C. § 1158 would not change Appellants’ alien status. See 8 U.S.C. § 1101(a)(3) (defining "alien" as "any person not a citizen or national of the United States"). Indeed, only "aliens" can apply for asylum under 8 U.S.C. § 1158(a)(1).

Using similar logic, this court in an unpublished decision concluded that the government’s failure to refer a defendant to an asylum officer for a reasonable fear determination was not grounds for dismissing his indictment for illegal reentry. United States v. Brizuela , 605 F. App'x 464, 465 (5th Cir. 2015). In Brizuela , the court concluded that even if the government had failed to comply with a regulation mandating a reasonable fear interview,

such a violation has no relevance to the prosecution for illegal reentry. No legal authority

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