United States v. Velazquez-Hernandez
| Decision Date | 28 January 2020 |
| Docket Number | Case No.: 19CR03066-KSC |
| Court | U.S. District Court — Southern District of California |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ELIZEO VELAZQUEZ-HERNANDEZ, Defendant. |
ORDER DENYING DEFENDANT'S MOTIONS TO (1) DISMISS THE INFORMATION; (2) PRESERVE AND PRODUCE COMPLETE DISCOVERY; (3) SUPPRESS STATEMENTS; AND GRANTING DEFENDANT'S MOTION TO: (4) LEAVE TO FILE FURTHER MOTIONS
On September 26, 2019, the Parties appeared before the Court regarding Defendant Elizeo Valazquez-Hernandez's Motions to (1) Dismiss the Information because: (A) § 1325 Violates the Non-Delegation Doctrine; (B) § 1325 is Unconstitutionally Vague; (C) Government Failed to Allege All Elements of § 1325; (D) Criminal Prosecution of Asylum Seekers Violates the Fifth Amendment, Statutory, and International Treaty Obligations; (E) Defendant's Prosecution Under § 1325 Violates the Equal Protection and Due Process Clauses; (F) § 1325's Definition of "Alien" Violates the Equal Protection and Due Process Clauses; (2) Preserve and Produce Complete Discovery; (3) Suppress Statements; and Granting Defendant's Motion for: (4) Leave to File Further Motions. ECF Nos. 24 and 27.
The Court took the Defendant's Motions under submission and now DENIES Motions Nos. 1-3 and GRANTS Motion No. 4 for the reasons set forth in the analysis below.
On August 8, 2019, the Court arraigned Defendant on an Information charging him with a single misdemeanor count of violating 8 U.S.C. § 1325(a)(1). ECF Nos. 22-23. Defendant entered a not-guilty plea. ECF No. 23. On August 29, 2019 and September 11, 2019 Defendant filed the instant Motions. ECF Nos. 24 and 27. On September 12, 2019, September 13, 2019, and January 7, 2020 the Government filed its Responses and attached a Proposed Superseding Information also charging Defendant with a single misdemeanor count of violating 8 U.S.C. § 1325(a)(1). ECF Nos. 28 and 29. Defendant has not been arraigned on the Superseding Information.
Defendant argues that 8 U.S.C. § 1325(a)(1) violates the non-delegation doctrine because it permits executive branch officials the discretion to determine what constitutes a crime under § 1325(a)(1). ECF No. 24 at 2-6. Defendant interprets the statute as allowing "immigration officers the ability to designate places for entry for purposes of immigration law." ECF No. 24 at 2. Defendant argues that this delegation is improper because Congress failed to provide any "intelligible principle" to guide and constrain that exercise of discretion. See ECF No. 24 at 8-9. In its Response, the Government argues that Defendant "reads the non-delegation doctrine far too broadly" and § 1325(a)(1) properly establishes "there should be Ports of Entry [and] properly allow[s] the Executive to determine where, when, and how these Ports operate." ECF No. 28 at 4.
Article 1, section 1 of the United States Constitution provides that "[a]ll legislative powers herein granted shall be vested in a Congress of the United States." "Accompanying that assignment of power to Congress is a bar on its further delegation." Gundy v. UnitedStates, 139 S. Ct. 2116, 2123 (2019). Congress may not delegate "powers which are strictly and exclusively legislative." Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825). "But the Constitution does not 'deny[ ] to the Congress the necessary resources of flexibility and practicality [that enable it] to perform its function[s].'" Gundy, 139 S. Ct. at 2123 (quoting Yakus v. United States, 321 U.S. 414, 425 (1944)). Congress may, however, "obtain the assistance of its coordinate Branches" and "may confer substantial discretion on executive agencies to implement and enforce the laws." Id. (citations omitted).
As the Supreme Court made clear, the standards to show a permissible delegation "are not demanding." Id. at 2129. Moreover, the Supreme Court has "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law." Id. (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989) (Scalia, J., dissenting)). Indeed, the Supreme Court has "[o]nly twice in this country's history (and that in a single year)" found a delegation excessive and "in each case only because 'Congress had failed to articulate any policy or standard' to confine discretion." Id. (citations omitted).
Here, Congress determined that there should be a proper location and procedure for an alien to seek admission to the United States. See 8 U.S.C. § 1225(a)(3) (). Congress also established penalties for failing to follow those procedures. See 8 U.S.C. §§ 1321-1330. § 1325(a)(1) is one such provision. The details of where and when the ports of entry would be located was left to the executive agency responsible for staffing the facilities. Contrary to Defendant's contentions, the Court does not find that this delegation falls outside of constitutional bounds.
Defendant attempts to read into the statute a broader delegation than stated by arguing that any individual immigration official can designate any piece of land as a place for entry. ECF No. 24 at 3. This is incorrect. Congress requires that aliens seeking lawful entrance to the United States do so at a port of entry. See United States v. Corrales-Vasquez, 931 F.3d 944, 946 (9th Cir. 2019); United States v. Aldana, 878 F.3d 877, 882 (9th Cir. 2017). Ports of entry can only be designated or de-designated by the Secretary of Homeland Security subject to the Administrative Procedures Act. See 8 C.F.R. § 100.4(a). Ports of entry also necessarily include facilities, staffed by immigration officials that are set up to accept applications for admission. Aldana, 878 F.3d at 882. Defendant's interpretation of § 1325(a)(1)—that it permits a border patrol agent to arbitrarily designate a section of the border fence as a port of entry—is in direct conflict with Congress's clear statutory scheme.
In support of his argument, Defendant cites the Supreme Court's decision in Touby v. United States, 500 U.S. 160, 169 (1991). At issue there was an amended statute that allowed the Attorney General to temporarily designate a particular drug as a Schedule I Controlled Substance thereby making the manufacture, possession, or distribution of that drug illegal. Id. at 163. The Supreme Court in Touby held that the delegation was permissible because Congress required the Attorney General to comply with several procedural steps before temporarily designating a new drug. Id. at 167. Defendant argues the delegation at issue in § 1325(a)(1) is similar, except Congress did not include direction "to the executive-branch official to guide and constraint the exercise of their discretion." ECF No. 24 at 6.
The Court disagrees, and finds that the issue in Touby is not analogous to § 1325(a)(1). In Touby, the Attorney General's authority to temporarily designate a drug as illegal was a discretionary act that expanded the scope of criminal conduct under the statute. Legislative direction was required. By contrast, the practical issues of where and when ports of entry are open does not expand the scope of conduct considered criminal under § 1325(a)(1). The type of conduct prohibited, i.e. illegal entry by an alien, remains the same. Setting the location of ports of entry and hours of operation only affects when and where an alien may lawfully comply with Congress's directives. It does not enlarge the scope of conduct that would subject an alien to criminal liability.
The Government cites Gundy v. United States to support its position that§ 1325(a)(1) does not violate the non-delegation doctrine. ECF No. 28 at 7. In Gundy, the Court upheld a delegation for the Attorney General to determine when it would be feasible to require sex offenders convicted prior to the statute's enactment to register. Gundy, 139 S. Ct. at 2121. Congress determined that the registration requirements applied to pre-Act offenders, but left the practical problems of implementation and when pre-Act offenders would be required to register to the Attorney General. See id. at 2129-30.
The Court finds Congress's delegation under § 1325(a)(1) analogous to the delegation in Gundy. Congress determined that entering the United States outside a port of entry was prohibited. Further, Congress properly delegated the authority to implement § 1325(a)(1) to the Executive Branch, the agency that would be responsible for staffing and operating the ports of entry. The Court therefore concludes that § 1325(a)(1) does not violate the non-delegation doctrine.
For these reasons, the Court DENIES Defendant's Motion to Dismiss the Information on non-delegation grounds.
Defendant next argues that the Information must be dismissed because § 1325(a)(1) is impermissibly vague in violation of the Due Process Clause. See ECF No. 24 at 13-16. Specifically, Defendant contends § 1325(a)(1) runs afoul of the Constitution because it allows "an immigration officer . . . to decide what places and times to designate for entry . . . for any reason or no reason at all." ECF No. 24 at 14. Defendant argues § 1325(a)(1) at least permits arbitrary enforcement, thereby subjecting the statute to a facial attack. ECF No. 24 at 15-16.
A statute can be impermissibly vague for either of two independent reasons: (1) "if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits" or (2) "if it authorizes or even encourages arbitrary and discriminatory enforcement." Hill v. Colorado, 530 U.S. 703, 732 (2000).
Defendant does not appear to seriously argue that § 1325(a)(1) fails to provide people of ordinary intelligence with a reasonable opportunity to understand what conductit prohibits. Indeed,...
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