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United States v. Torre-Hernandez

United States District Court, D. Idaho

June 20, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EFRAIN DE LA TORRE-HERNANDEZ, A/K/A EFRAIN DELATORRES HERNANDEZ, Defendant.

          MEMORANDUM DECISION AND ORDER

          B. LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE

         INTRODUCTION

         The 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 motion.

         LITIGATION BACKGROUND

         Torre-Hernandez 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.

         Torre-Hernandez's 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.

         The IJ 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.

         The IJ 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 States.

         The IJ 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.

         The 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.)

         Finally, 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.

         LEGAL STANDARDS

         The Due 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. § 1326(d).

         To 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 ...


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