United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE
Court has before it a motion to dismiss filed by defendant
Torre-Hernandez. The motion is fully briefed and at issue.
For the reasons explained below, the Court will grant the
has been charged with a single count of illegal reentry. The
Indictment alleges that he was lawfully removed from the
United States on September 13, 2013. Torre-Hernandez alleges,
however, that at his removal proceeding in 2013, the
presiding Immigration Judge (IJ) failed to advise him of his
right to apply for voluntary departure. This failure,
Torre-Hernandez argues, deprived him of his due process
rights and requires that this Indictment be dismissed.
motion requires the Court to examine the removal proceedings
conducted in 2013. Just prior to those removal proceedings,
Torre-Hernandez had been imprisoned following a conviction
for illegal reentry. Upon his release in 2013, he was served
with a Notice to Appear at removal proceedings before the
Immigration Court. That proceeding was held on September 12,
2013, and included a group of individuals subject to removal.
Addressing them as a group, the IJ explained that he would
first determine if the charges of removability were true,
and, if so, would then determine “whether you'll be
permitted to stay here in the United States or not or whether
you'll be permitted to leave voluntarily.”
Transcript (Dkt. No. 16-5) at 5:21-6:2.
“Either way, ” he explained, “you would
avoid a deportation order.” Id. at 6:2-3. He
summarized, “the purpose of these proceedings, as many
of you have figured out, is to determine whether you'll
be permitted to stay here in the United States or not or
leave without - or leave with voluntary departure.”
Id. at 6:3-7.
then explained three fundamental rights - the right to an
attorney, the right to submit evidence, and the right to
appeal - and explained each right, noting that there was a
free legal service provider at the facility and “they
can talk to you about whether you are eligible for some type
of relief that would permit you to stay here in the United
States.” Id. at 6:20-23. The IJ also informed
the group that they had the right to present evidence,
including evidence about why they should be allowed to remain
in the United States. Id. at 7:12-17, 7:23-8:5.
While discussing the right to appeal, the IJ stated,
“I'll also be required to make a decision whether
you'll be permitted to stay here and whether you're
going to be deported or receive voluntary departure.”
Id. at 9:8-11. “Any time I make a decision,
you have the right to file an appeal.” Id. at
9:12-13. He asked if anyone in the group was a citizen or
national of the United States. No. one raised their hand, so
he proceeded and asked each individual if they wanted to
proceed with or without an attorney. Torre-Hernandez said he
wanted to proceed without an attorney. Id. at 12:13.
then questioned Torre-Hernandez individually. Torre-Hernandez
admitted that he was not a citizen or national of the United
States; that he was a citizen and native of Mexico; and that
he entered the United States illegally on December 3, 2011.
Id. at 14:1-16. Based on the factual admissions, the
IJ found that the defendant was illegally in the United
then asked a series of questions “to see if you're
eligible for any type of relief or for voluntary departure.
If you think you may be eligible for some form of relief,
please let me know so I can consider it as well.”
Id. at 16:12-15. In response to questioning,
Torre-Hernandez stated that he first entered the United
States in 1999. At this time, the government attorney stated
that Torre-Hernandez had been removed to Mexico on at least
seven prior occasions. Id. at 17:1-5.
discussion turned to personal facts and Torre-Hernandez's
ties to the United States. Torre-Hernandez stated that his
parents were not citizens of the United States; he was
single; he had two children born in the United States; and he
had left the United States several times since 1999.
(Id. at 17:11-23.)
the IJ asked Torre-Hernandez “Is there any type of
relief you want to ask the Court for?” Id. at
20:15-16. Torre-Hernandez stated there was not. Id.
at 20:17. The IJ then ordered that Torre-Hernandez be
deported to Mexico. The court notified Torre-Hernandez that
he had a right to appeal or he could waive appeal.
Torre-Hernandez waived his right to appeal, and did not
appeal the decision.
Process Clause of the Fifth Amendment requires that an alien
charged with a violation of 8 U.S.C. § 1326 be given an
opportunity to collaterally challenge the deportation
proceedings underlying the charge. U.S. v.
Mendoza-Lopez, 481 U.S. 828, 837-38 (1987). Accordingly,
a defendant may collaterally attack his underlying removal
order as violative of due process. See 8 U.S.C.
prevail, Torre-Hernandez must demonstrate (1) the
“exhaustion of any administrative remedies that may
have been available to seek relief against the order, ”
(2) “the deportation proceedings at which the order was
issued improperly deprived the alien of the opportunity for
judicial review, ” and (3) “the entry of the
order was fundamentally unfair.” U.S. v.
Ramos, 623 F.3d 672, 680 (9th Cir. 2010). An underlying
deportation order is “fundamentally unfair” if
(1) Torre-Hernandez's due process ...