Opinion
CR 22-02109-TUC-SHR (EJM)
01-23-2024
United States of America, Plaintiff, v. Gadiel Guadalupe Millanes-Corrales, Defendant.
REPORT AND RECOMMENDATION
ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE
Pending before the Court is the defendant's Motion to Dismiss Indictment Pursuant to 8 U.S.C. § 1326(d) (Doc. 21). Three grounds are raised in support of dismissal: (1) the defendant's expedited removal from the United States violated the Appointments Clause of the U.S. Constitution because the immigration officials who conducted the removal are inferior officers not properly appointed by the President, Courts of Law, or Heads of Departments; (2) the defendant did not sign the reverse side of the Notice and Order of Expedited Removal acknowledging receipt as required under 8 C.F.R. § 235.3(b)(2)(i); and (3) there was no basis on which to determine that the defendant was inadmissible under 8 U.S.C. § 1182(a)(7) because at the time he was apprehended, he had not submitted an application for admission and was not applying for entry at the border.
The Court concludes that Border Patrol agents who conduct expedited removals of noncitizens are not inferior officers under the Appointments Clause. A Border Patrol agent's authority and duties in conducting an expedited removal are not remotely akin to a judge or other decision-maker. The agents do not conduct any independent investigation, take evidence, and have little discretion. As a result, expedited removal proceedings do not resemble a trial or evidentiary hearing where witness testimony and evidence is presented to determine whether expedited removal is the lawful and/or appropriate remedy. Therefore, the Court recommends that the Motion to Dismiss be denied based on an Appointments Clause violation.
The Court also finds that dismissal of the indictment is not warranted simply because the defendant did not sign the reverse side of the Notice and Order of Expedited Removal. Although the failure to obtain the defendant's signature violated the regulation referenced above, the defense has not presented sufficient evidence to support an argument that the defendant did not understand the Notice and Order of Expedited Removal or anything that occurred during the removal proceedings. Thus, the failure to obtain the defendant's signature was a harmless error.
The Court agrees with the defendant that his expedited removal from the United States violated his due process rights because he was not inadmissible under 8 U.S.C. § 1182(a)(7) as an arriving alien at a port of entry. Moreover, the Court concludes that the defendant has established that he was prejudiced because it is plausible that if the appropriate removal proceeding was utilized he would have been granted a voluntary departure and a removal order would not have resulted. Accordingly, the Court recommends that the indictment be dismissed for this reason.
FACTUAL BACKGROUND
The defendant was charged in a criminal complaint dated September 6, 2022 with the felony offense of Reentry of a Removed Alien, a violation of 8 U.S.C. § 1326(a) and (b)(1). Doc. 1. The complaint alleges that the defendant is a citizen of Mexico and was found in the United States near Sasabe, Arizona on September 3, 2022. The complaint further alleges that the defendant was previously removed from the United States through San Ysidro, California on May 25, 2022, and did not obtain legal permission to return to the United States. On September 28, 2022, a federal grand jury in Tucson, Arizona returned an Indictment charging the defendant with the same offense alleged in the complaint. Doc. 9.
The May 25, 2022, removal alleged in the complaint and Indictment was the result of a reinstatement of a prior removal order dated January 18, 2013, which is the subject of the instant motion.
On May 5, 2023, the defendant filed a Motion to Dismiss Indictment Pursuant to 8 U.S.C. § 1326(d) (Doc. 21). The three grounds raised in support of dismissal are set forth above and will be discussed in more detail below. An evidentiary hearing on the Motion to Dismiss was held on August 21, 2023 and September 20, 2023. Two witnesses testified at the hearing: (1) David Lawrence and (2) Braden King. Their testimony is set forth below.
Direct examination of David Lawrence:
David Lawrence has been employed with U.S. Immigration and Customs Enforcement (“ICE”) since 2016. Hr'g Tr. 8/21/2023 (Doc. 51) at 9. Prior to his employment with ICE, Agent Lawrence was employed with the U.S. Customs and Border Protection Office of Field Operations. Id. He joined the Border Patrol in 2011. Id.
Agent Lawrence attended the Border Patrol Training academy and a two-month Spanish immersion program after Border Patrol basic training. Id. at 10. The Spanish immersion program consisted of employing the use of role players, who are primarily native Spanish speakers, to conduct “daily scenarios and practical exercises” regarding “service processing or apprehension[.]” Id. at 10-11. The scenarios and exercises are graded. Hr'g Tr. 8/21/2023 (Doc. 51) at 11. Agent Lawrence finished at the top of his class. Id.
Agent Lawrence spoke Spanish prior to joining the Border Patrol. Id. Aside from his “four to six years of education of taking Spanish, [he] became fluent conducting missionary work as a member of the Church of Jesus Christ of Latter-Day Saints.” Id. He explained that it was important to be fluent in Spanish when doing missionary work so he could communicate with the community he was serving. Id. at 12.
Agent Lawrence used his Spanish speaking skills every day while he was a Border Patrol agent. Hr'g Tr. 8/21/2023 (Doc. 51) at 12. He never had any direct complaints about his Spanish. Id. He explained that the only concern “would have been if we had somebody who was not a Spanish speaker or somebody who has speaking a more rural dialect[.]” Id. at 12.
At the Border Patrol academy, Agent Lawrence received training on conducting expedited removals. Id. at 13. That training involved instruction on the law governing expedited removals and “the paperwork and procedures that are associated with that particular process[.]” Id. at 13-14. Agent Lawrence successfully completed that training as well. Hr'g Tr. 8/21/2023 (Doc. 51) at 14.
Agent Lawrence was not able to estimate how many people he processed for expedited removal while he was a Border Patrol agent. Id. He explained that during the summertime approximately 1,500 to 2,000 people would come through the processing center each day. Id. at 15. It is possible that he processed more than a hundred people a day. Id. There were never any concerns about his Spanish language skills during the time that he did processing. Id.
In January of 2013, Agent Lawrence was assigned to the “Tucson Coordination Center, which is where the processing occurs for the entire Tucson Sector, which includes all the satellite substations and Border Patrol stations withing all of Arizona.” Hr'g Tr. 8/21/2023 (Doc. 51) at 15. Any noncitizen apprehended in Arizona is transported to this processing center. Id. He explained that the Tucson Coordination Center “was specifically set up to house people for up to 72 hours prior to their placement with Immigration and Customs Enforcement, who has the contracts with the detention centers.” Id. at 16. As a result, this processing center was busy every day. Id.
With respect to the processing process at the Tucson Coordination Center, Agent Lawrence explained that noncitizens are taken into a “sally port area, which is the main staging area, before they're brought into the actual processing center.” Id. Medical triage may be done where individuals are checked for injuries and any humanitarian needs are addressed. Hr'g Tr. 8/21/2023 (Doc. 51) at 16. Property of the individuals is accounted for and they are issued a blanket and a meal. Id. There are agents in the staging area who verify the information in the field apprehension worksheets, such as biographical information and the exact location of where a person was apprehended. Id. at 16-17.
Once the tasks in the staging area are complete, individuals are “admitted into the processing center where they will be categorized, as far as to whether or not they're going to be criminally prosecuted or if they're going to be set up for return and removal back to their home country.” Id. at 17. The decision as to prosecution or removal is based on “either criminal history of an individual or any possible humanitarian or medical need they may have had.” Id. The decision as to criminal prosecution or removal has been made before the interview of the noncitizen. Hr'g Tr. 8/21/2023 (Doc. 51) at 18.
There are waiting areas and holding rooms for individuals in the processing center. Id. at 17. The processing of noncitizens is based on “order of arrival, being sensitive to the time people are held in custody.” Id. The processing agent obtains the field worksheet and retrieves the individual and brings them out of the holding room to a processing desk where an in-person interview occurs. Id. Prior to the interview, a processing agent usually has a person's name, date of birth, country of citizenship, the GPS location of where a person was apprehended, any claim of humanitarian needs, and if the person is “wanting to return to their country as soon as possible.” Id. at 18.
Agent Lawrence does not specifically recall processing the defendant. Hr'g Tr. 8/21/2023 (Doc. 51) at 19. However, he explained that his signature appears on defendant's removal documents which means that he “would have been the agent that processed him.” Id. Again, although Agent Lawrence has no recollection of processing the defendant, he explained that he used the same practices and procedures every time he processed a noncitizen for an expedited removal. Id. at 21.
Testimony turned to a document titled: “Record of Sworn Statement in Proceeding under Section 235(b)(1) of the Act” (“Gov't Ex. 2”). Id. at 21. Agent Lawrence's signature appears on this document. Id. at 22; see also Gov't Ex. 2. He explained that his signature on the document means that “I am not only the agent that processed whoever the person in question would be, it means I'm also the agent that served this paperwork and explained what was happening to the individual.” Hr'g Tr. 8/21/2023 (Doc. 51) at 22.
Agent Lawrence's signature also appears on a document titled “Notice to Alien Ordered Removed/Departure Verification” (“Gov't Ex. 3”). Id. at 23. As a result, Agent Lawrence is sure that he was the agent involved in explaining this document to the defendant and filling out the document. Id. at 23-24. Similarly, Agent Lawrence's signature on the document titled “Notice and Order of Expedited Removal” (“Gov't Ex. 1”) means that he was the agent who filled out and reviewed the document with the defendant. Id. at 24.
Agent Lawrence explained that the interview of a noncitizen starts “as a conversation, verifying their information” and assessing humanitarian needs, before working “into the actual legal documentation of their exact process.” Id. at 25-26. He further explained that while escorting a noncitizen from the holding area to the processing desk he is able see if there are injuries or if they are tired or hungry given that they have been travelling a long time. Hr'g Tr. 8/21/2023 (Doc. 51) at 26. There have been times when a person says they are too tired and do not want to talk at that time; in those instances, the person is given a chance to rest. Id.
Agent Lawrence explained that Border Patrol policy is to have another agent (usually a native Spanish speaker) present as a witness when the noncitizen is interviewed. Id. at 26-27. If the noncitizen appears to have trouble understanding the agent conducting the interview, the witness agent would be there to verify if the problem is with the interviewing agent's Spanish or an issue with the noncitizen's dialect. Id. at 27. If the native Spanish speaking agent is unable to communicate with the noncitizen, then language translation services are used to help find the noncitizen's exact language or dialect. Id. The witness agent is also present when the removal paperwork is being explained and completed. Hr'g Tr. 8/21/2023 (Doc. 51) at 27. Agent Alvarez was the witness agent for the defendant's interview. Id. at 28. He would have been present when the removal paperwork was explained and executed. Id.
Agent Lawrence testified that there are two agents with the last name Alvarez that he worked with at the Tucson Coordination Center. Hr'g Tr. 8/21/2023 (Doc. 51) at 28. He cannot recall which agent was the witness for the defendant's interview. Id. Both agents are native Spanish speakers. Id. at 29.
Testimony returned to what occurs at the beginning of the interview of a noncitizen. Agent Lawrence testified that after he verifies that the person is in good health and their biographical information, he “simply go[es] right into what's going to happen.” Id. at 29. However, sometimes the noncitizen preemptively asks questions about what is going to happen - e.g., if they are going home or to prison. Id. at 29. If a noncitizen is going to go through the expedited removal process, Agent Lawrence explains that process, which includes taking a sworn statement. Hr'g Tr. 8/21/2023 (Doc. 51) at 30. Again, if the noncitizen had difficulty understanding him, Agent Lawrence would request assistance from another agent. Id. at 31.
With respect to Government Exhibit 2, the “Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, Agent Lawrence testified that this document “is the opening statement that is read in the Spanish language to the noncitizen at this point in the processing.” Id. Government Exhibit 6, which is titled “I-867A,” details the noncitizen's administrative rights in the Spanish language and sets forth the opening statement contained in the Record of Sworn Statement. Id. at 31-32. Based on Agent Lawrence's standard practices and procedures, he testified that “I would have read [the Form I-867] in its entirety, and I would also have taken pauses and breaks to make sure they're understanding along the way.” Id. at 32. If a noncitizen told Agent Lawrence that s/he did not understand something, he would have asked if the problem was with the right explained or a problem with his Spanish. Hr'g Tr. 8/21/2023 (Doc. 51) at 33. If it was the latter, the witness agent would assist. Id. Agent Lawrence would stop the removal process if the person “said they weren't understanding” or “did not appear to be understanding[.]” Id. Agent Lawrence testified that he conducted his processing of noncitizens the same way for every individual going through the expedited removal process. Id. at 32. As a result, Agent Lawrence has no doubt that he read the I-867 to the defendant on January 18, 2013. Id.
Testimony turned to the questions and answers that appear on the Record of Sworn Statement (“Gov't Ex. 2”). Hr'g Tr. 8/21/2023 (Doc. 51) at 37. The questions on this document are standard questions that are asked during expedited removal proceedings. Id. Although the questions are in English, Agent Lawrence would ask the question in Spanish. Id. If a person had difficulty understanding a question or an answer was not responsive, then follow-up or clarifying questions would be asked. Id. The answers to the questions are documented verbatim in English. Id. at 37-38.
The defendant's answers to the questions do not give Agent Lawrence a concern about his ability to understand the questions. Hr'g Tr. 8/21/2023 (Doc. 51) at 38. In fact, Agent Lawrence is confident that the defendant understood the questions based on the following question and answer. Id. In response to the question of how the defendant entered the United States, the defendant responded: “By walking through the desert near Sasabe, Arizona.” Id. at 38. Agent Lawrence explained that the defendant knew exactly where he was in Arizona and the defendant's answer was not “a typical answer of people crossing into the United States.” Id. He further explained that:
in my professional experience people who are crossing with large groups do not necessarily know exactly where they were when they were apprehended or what city they crossed through. They may identify the Sonoran desert, the city in Mexico, but it was rare in my experience for them to identify the exact city they crossed into coming into Arizona.”Id. at 39.
There is signature line on both pages of the Record of Sworn Statement to ensure that the noncitizen understands the questions asked on both pages and that their responses are accurate. Hr'g Tr. 8/21/2023 (Doc. 51) at 39. Before obtaining the noncitizen's signature, Agent Lawrence asks the final question on the second page: “Is there anything else that you would like to say at this time?” Id. at 40. Based on Agent Lawrence's practices and procedures, the signature on both pages of the Record of Sworn Statement leaves no doubt in his mind that he “went back over these questions and answers with this person on these forms before having them sign[.]” Id. Moreover, he would never have “someone sign these documents without having read back” the questions and answers to verify that they are accurate. Id. He also would never have a person sign if they had difficulty understanding or gave nonresponsive answers. Id. at 41. And if a person indicated that a response was inaccurate, Agent Lawrence would “go back to the question that was of concern” and make any needed corrections. Hr'g Tr. 8/21/2023 (Doc. 51) at 40-41. As a result, the signatures on the Record of Sworn Statement make Agent Lawrence confident that the signatory understood what was explained to him and confirmed that his answers were accurate. Id. at 41-42. Based on the witness signature on the third page of the document, Agent Lawrence is also confident that the agent witness was present when the form was explained, the questions were asked, and the responses were provided. Id.
Testimony turned to Notice of Expedited Removal (“Gov't Ex. 1”), which Agent Lawrence described as the determination of inadmissibility. Id. at 46. It identifies the relevant provision of the immigration law and “it also covers the order of removal, signed by the agent and then authorized and approved by management from the Border Patrol.” Id. The Notice of Expedited Removal “is one of the last documents that is served after the questioning is complete and the determination of inadmissibility has been made.” Hr'g Tr. 8/21/2023 (Doc. 51) at 47. The certificate of service at the bottom of the document is proof that the person was personally served and that “the specific document was explained to them as well.” Id. Although Agent Lawrence does not recall serving this document on the defendant, he testified that he would not sign a Notice of Expedited Removal unless he served it on the noncitizen. Id. at 47-48.
The first paragraph of the Notice of Expedited Removal identifies the section of the immigration law that is being enforced, which in this case is Section 235(b)(1). Id. at 48. Agent Lawrence always explains this paragraph to the noncitizen. Id. Agent Lawrence explained that if the noncitizen expressed confusion, “the process would be halted until we could establish what the exact concern was.” Hr'g Tr. 8/21/2023 (Doc. 51) at 49. However, he cannot recall a time where the expedited removal process had to be halted because of a concern or confusion. Id. Because Agent Lawrence's signature is on this document, he has no concern that the defendant was confused about the expedited removal process. Id. Also, he is confident that he explained the document to the defendant and served him with a copy of the document. Id. at 49-50.
Testimony turned to a document titled Notice to Alien Ordered Removed/Departure Verification (“Gov't Ex. 3”). Id. at 51. This document “is the explanation of the findings of the expedited removal and that they have been found to have been inadmissible for [a] period of time[.]” Hr'g Tr. 8/21/2023 (Doc. 51) at 51. In this case, the period of inadmissibility is for five years. Id. The bottom of this document “also has verification of removal where a separate agent verified the actual departure of the individual who's being processed, along with the processing agent or whoever the agent was that would have verified the identity of the individual prior to their removal.” Id. at 51-52. Once again, because Agent Lawrence's signature appears on this document, he is confident that he reviewed the document with the defendant and there were no confusion or concerns. Id. at 52.
At the time Government Exhibit 1 was executed in 2013, Agent Lawrence was not aware of a regulation that required the noncitizen to sign the back of this document. Id. at 53. During this time frame, neither Agent Lawrence nor any other processing agents had the noncitizen sign the back of this document. Hr'g Tr. 8/21/2023 (Doc. 51) at 53-54. Again, because Agent Lawrence signed the certificate of service provision on this document, he has no doubt that he served the document on the defendant. Id. at 54.
By the time that a noncitizen is presented to a processing agent, a decision would have already been made by a supervisory agent as to whether the person would be subject to expedited removal, criminal prosecution, or if there were humanitarian concerns. Id. at 54-55. Agent Lawrence, as a processing agent, “did not have final say[.]” Id. If a humanitarian or disability concern was raised during the expedited removal process, “it had to be taken to Border Patrol management for approval.” Id. at 55. Agent Lawrence provided two examples where during the removal process he presented a humanitarian or disability concern to a supervisory agent. Hr'g Tr. 8/21/2023 (Doc. 51) at 55-56. One was where a wound on a person's arm became infected and the arm had to be amputated. Id. In that case, the person was paroled into the United States and therefore not subject to expedited removal. Id. The other case was where a female was lactating but was not apprehended with her baby; the concern was about who had her baby. Id. at 56. But, again, that concern had to be presented to Border Patrol management. Id.
Agent Lawrence is familiar with a process called “voluntary withdrawal of application.” Hr'g Tr. 8/21/2023 (Doc. 51) at 56. However, he had not “worked with a voluntary withdrawal until [he] was at the actual port of entry under field operations.” Id. During the time that Agent Lawrence was working as a processing agent at the Tucson Coordination Center, he had not seen “any cases where adult, healthy males traveling alone that were Mexican citizens” were eligible for a voluntary withdrawal. Id. at 57.
As a processing agent conducting an expedited removal, Agent Lawrence did not take statements from other witnesses or gather evidence or documents from other sources. Id. His only role was to take a statement from the noncitizen who is the subject of expedited removal proceedings. Id. at 57. If the noncitizen raised a citizenship claim, the person would be “set up for a separate process” and “eventually be turned over to Immigration and Customs Enforcement custody.” Hr'g Tr. 8/21/2023 (Doc. 51) at 57-58. Agent Lawrence would not have taken evidence on or resolved that issue. Id. at 58. Similarly, if a person brought up a claim of credible fear, he would not have taken evidence on or resolved that issue. Id. Again, the person would have been “transferred to the custody of Immigration and Customs Enforcement where those claims are adjudicated by Citizenship and Immigration Services, by a duly authorized and sworn asylum officer.” Id. ... ...
Cross-examination David Lawrence:
Agent Lawrence “could have processed up to and including a hundred” noncitizens for expedited removal, but he does not know how many people in total that he processed. Id. at 59. It would not be unheard of for him “to process up to 15 cases per day[.]” Hr'g Tr. 8/21/2023 (Doc. 51) at 59-60. Agent Lawrence agreed with counsel that he does not recall processing the defendant and that his testimony is based on the removal paperwork. Id. at 60. However, he added that his testimony is also based on the procedures that he consistently followed in processing noncitizens. Id. at 60-61. Agent Lawrence agreed with counsel that in 2013 he had less than two years of experience in processing individuals. Id. at 62.
Agent Lawrence agreed that he was familiar with the immigration laws that he was administering when he was a Border Patrol agent. Id. at 63-65. He also agreed that as an immigration officer he was authorized to receive evidence, such as a sworn statement, from the noncitizen that he was interviewing. Hr'g Tr. 8/21/2023 (Doc. 51) at 65. In response to counsel's question of whether Agent Lawrence had the authority to issue “notices to appear,” he testified that “I have the authority to conduct the notice to appear process, but the actual signing off on that order was done by a Border Patrol supervisor.” Id. at 66.
Agent Lawrence agreed with counsel that he advised noncitizens of their rights and created a written record for the person he interviewed. Id. However, he disagreed with counsel's assertion that he could decide “whether to refer a noncitizen to other immigration systems, such as the asylum system[.]” Id. He explained that he had “the ability to raise concerns or disabilities or inabilities of an individual” to Border Patrol management. Id. He could report his findings and make a recommendation, but he alone did not have the discretion to refer a noncitizen to another immigration system. Hr'g Tr. 8/21/2023 (Doc. 51) at 66.
Testimony turned to Agent Lawrence's fluency in the Spanish language. He again testified that he is not a native Spanish speaker and took a Spanish course at the Border Patrol academy. Id. at 66-67. He did not major or minor in Spanish in college. Id. at 67. But he did have “a baseline of some Spanish” before he attended the training academy. Id. at 68. The Spanish course at the academy consisted of a “series of practical exercises” and testing on verbal and written skills. Id. at 67.
With respect to the advisal of rights form, which is in Spanish, Agent Lawrence testified that the form is similar to the Miranda card that he keeps in his wallet. Hr'g Tr. 8/21/2023 (Doc. 51) at 68. He reads the advisal form verbatim during every interview so there is “no room to say that [he] didn't say the right thing” and to show he did a proper translation. Id.
Agent Lawrence agreed with counsel that he created the expedited removal record for the defendant based on the following forms: the I-860, which is the Notice and Order of Expedited Removal; the I-296, which is the Notice to Alien Order Removal and Departure Verification; the I-867A form, which is the Record of Sworn Statement; and the I-867B, which is the Jurat for Record of Sworn Statement. Id. at 69. He agreed with counsel that each form serves a different purpose in the expedited removal process and each form “requires different things to be done[.]” Id. at 69-70. He further agreed that the forms are being used in the criminal prosecution of the defendant. Id. at 70.
Agent Lawrence agreed with counsel that the Notice and Order of Expedited Removal (Form I-860) would have provided notice to the defendant of the charge of inadmissibility and is also the order of expedited removal. Hr'g Tr. 8/21/2023 (Doc. 51) at 70-71. Agent Lawrence added that the bottom of this form notes that it was served on the defendant. Id. As such, Agent Lawrence agreed with counsel that this document is critical. Id. at 71. Once again, Agent Lawrence testified that he was not aware in 2013 that this document had to be signed by the noncitizen. Id. at 72. He explained that the document has “the certificate of service section” and he was not “familiar with any other place where it would have to be signed.” Id. He was also not aware of a requirement that the noncitizen had to place his initials on this document. Hr'g Tr. 8/21/2023 (Doc. 51) at 73. Agent Lawrence agreed that neither the defendant's signature nor initials are on the front or the back of the I-860. Id. at 73-74. Agent Lawrence was not instructed at the training academy that a noncitizen needed to sign and initial the I-860. Id. at 75. Agent Lawrence does not have personal knowledge of whether the defendant understood the Notice and Order of Expedited Removal because he does not have a specific recollection of the defendant. Id. at 75-76. Although Agent Lawrence does not recall whether he read the I-860 to the defendant, his practice was to do so for all noncitizens facing expedited removal. Id. at 77. Agent Lawrence agreed with counsel that the I-860 is in English and it does not say that he translated the form into Spanish for the defendant. Hr'g Tr. 8/21/2023 (Doc. 51) at 77. The I-860 also does not say that Agent Lawrence informed the defendant “of the types of relief available.” Id. at 78.
Agent Lawrence did not record the interview of the defendant and does not have any notes beyond what is in the defendant's A-file. Id. at 76-77.
The document titled “Record of Sworn Statement and Proceedings Under Section 235” is used to record the defendant's statements and document who was present for the interview and the language spoken during the interview. Id. Agent Lawrence agreed that this document does not say whether the defendant “received notice of the determination of admissibility” or whether he “received a notice and order of expedited removal.” Id. at 79. In response to counsel's question of if Agent Lawrence agreed that this document does not say whether the defendant understood the notice and order of expedited removal, Agent Lawrence testified as follows:
Well, the first question of the first page of your exhibit asked, “Do you understand what I said to you? And his answer was yes. And whatever person has their . . . corresponding signature, it is indicative that they understood that.Id.
Agent Lawrence cannot recall if he asked the defendant all the questions that appear on the document titled “Questionnaire 867A.” Hr'g Tr. 8/21/2023 (Doc. 51) at 79. Agent Lawrence added that “the questions on this document are not all of the questions that appear on the record of sworn statement.” Id. at 81. Agent Lawrence agreed with counsel that the record of sworn statement, which is in English, does not say whether the defendant was offered an interpreter. Id. Agent Lawrence does not believe the defendant could read English. Id. at 83. In response to counsel's assertion that when the defendant signed the record of sworn statement he would not have understood anything about this document because it was in English, Agent Lawrence testified that “he explained it to him” in Spanish. Id. at 82. Agent Lawrence added that he processed every noncitizen the same way so their rights and privileges were respected, “especially those who do not understand.” Hr'g Tr. 8/21/2023 (Doc. 51) at 82. Even though the defendant could not read English, the ability to make corrections to answers is afforded to everyone. Id. at 83.
Agent Lawrence has no recollection of a requirement that the noncitizen put his initials on the record of sworn statement. Id. Agent Lawrence agreed that the defendant's initial do not appear on this document; however, his signature is on the document. Id. Agent Lawrence does not recall the questions and answers on the sworn statement “being documented in Spanish.” Id. In fact, he has no “recollection of a Spanish requirement on a legal document.” Hr'g Tr. 8/21/2023 (Doc. 51) at 83.
Agent Lawrence agreed that the sworn statement consists of two pages. Id. at 84. The third page of the document is titled “the Jurat for Record of Sworn Statement.” Id. at 85. Agent Lawrence agreed that the Jurat does not say that the first two pages of the sworn statement were read to the defendant. Id. Rather, the Jurat only says that the statement on the Jurat was read to the defendant. Id. Agent Alvarez's signature appears on the bottom of the Jurat as the witnessing agent. Hr'g Tr. 8/21/2023 (Doc. 51) at 87.
The Notice to Alien Ordered Removed/Departure Verification is in English. Id. at 86. Agent Lawrence's signature appears on this document. Id. at 87. This document imposes a five-year ban on the defendant from entering the United States. Id. The document notes that the defendant may be subject to criminal penalties if he unlawfully returns to the United States. Id. Agent Lawrence agreed that this document does not contain any indication that the defendant “understood the content of this form.” Hr'g Tr. 8/21/2023 (Doc. 51) at 87. He also agreed that signatures on documents are important because they are an acknowledgement of receipt of a document. Id.
Re-direct examination:
The Jurat and the sworn statement were “always done back to back, the first two pages and the [J]urat[.]” Id. at 89. As a result, if a witness was present for the Jurat then the witness would also have been present when the sworn statement was taken. Id. Agent Lawrence never did an interview of a noncitizen where a Spanish speaking witness was not present. Id. Agent Lawrence would not “have signed off on this paperwork” if he had not conducted the interview in accordance with his standard practice. Hr'g Tr. 8/21/2023 (Doc. 51) at 90. That practice includes reading the sworn statement back to the defendant. Id. at 91. Agent Lawrence would never have “someone sign the pages of their sworn statement” if he had not read it back to him in Spanish. Id. at 91. He also would not have had someone sign their sworn statement if they have not been given “the opportunity to correct any inaccuracies” or if the person “did not understand what was going on[.]” Id. As a result, the defendant's signature on the sworn statement makes Agent Lawrence confident that he followed this process with the defendant. Id. at 92. Agent Lawrence does not recall any interview of a noncitizen during expedited removal proceedings being recorded. Hr'g Tr. 8/21/2023 (Doc. 51) at 93.
Agent Lawrence again testified that at the time of the defendant's removal in 2013, he was not aware of any regulation or requirement that the defendant sign the Notice and Order of Expedited Removal. Id. at 94. In fact, there is not a line for the noncitizen's signature on this document. Id. at 94. In 2013, agents who did processing for expedited removals were not aware of a signature requirement; indeed, Border Patrol management reviewed the order of removal. Id. at 95. The reference on the order that Agent Lawrence personally served it on the defendant means that he “not only explained everything that was happening, but [he] was the person that created the record,” and did any interpreting that was needed. Id. Agent Lawrence would not sign off on the order of removal if he had not served it on the noncitizen. Hr'g Tr. 8/21/2023 (Doc. 51) at 95-96. Similarly, he would not sign off if he was not comfortable that the noncitizen “understood what was contained in the notice[.]” Id. at 96.
Testimony turned to Agent Lawrence's authority and discretion that he had in conducting expedited removal proceedings. Id. at 96. Agent Lawrence's role was to document “exactly what was said and what happened[.]” Id. at 97. He was not analyzing anything, weighing evidence, drafting legal opinions, or “making any sort of legal analysis or legal decisions[.]” Id.
The Court's examination:
“The process of becoming a processing center agent at the Tucson headquarters” is competitive; it “requires a solicitation email and selection through the chain of command.” Hr'g Tr. 8/21/2023 (Doc. 51) at 98-99. Agent Lawrence explained that the training for becoming a processing agent is “a continuation of the training you received at the academy, and then you're essentially shadowing other journeymen agents in the processing center . . . for your first couple of weeks[.]” Id. at 99.
Agent Lawrence testified that if he (or any processing agent) were “going to be deviating from the expedited removal” process, like where there is a credible fear expressed, then the case would be referred to Border Patrol management. Id. However, absent any such deviation, once a supervisor “signs off” then the noncitizen would be served with the order of removal. Id. at 100. The supervisor would be provided with the noncitizen's Alien File, which includes the “entire packet of the encounter from the field,” the records check, and the documents discussed during the hearing. Id. Generally speaking, the supervisor would return these materials “in less than 15 to 20 minutes.” Hr'g Tr. 8/21/2023 (Doc. 51) at 100.
In response to the Court's question of “who is actually ordering the removal” - the processing agent, the supervisor or both - Agent Lawrence testified that “Border Patrol agent is initiating the event or the record of the proceeding and management” is approving the removal. Id. at 101. So, it essentially both the processing agent and the supervisor, but the process could not proceed without the supervisor's approval and signature. Id.
The Court asked Agent Lawrence to explain what discretion, if any, that the processing agent has in deviating from the expedited removal process. Id. If a credible fear or humanitarian concern was brought to the attention of a supervisor, Agent Lawrence testified that:
[he could not] speak to exactly what leeway or discretion management themselves may have had from their superiors, but there was no conversation or convincing or anything that needed to occur. It was assumed that they would be set up for a notice to appear where they would get their ability to have their asylum hearing with an asylum officer.Id. at 102. Agent Lawrence explained that notices to appear were issued for family units, fear claims, and claims of citizenship. Hr'g Tr. 8/21/2023 (Doc. 51) at 102.
The Court asked whether an expedited removal would be triggered because the person reports they are not a U.S. citizen and does not have the legal permission to enter the United States. Id. at 103. Agent Lawrence testified as follows: “That would be two factors, of course, but there's also the totality of circumstances, being their age, condition, whether they travelled alone, whether they're in good health.” Id. But their lack of legal status “would be determining factors as well.” Id. With respect to the totality of the other factors that Agent Lawrence identified, he testified that he “would have the discretion to present to management what [he] discovered and what the concerns are so that we could possible seek an alternative route from expedited removal.” Id. Agent Lawrence recalls exercising his discretion when a noncitizen travelled with children who were not apprehended with the parent, “which means they had made it to their final destination.” Hr'g Tr. 8/21/2023 (Doc. 51) at 105. However, he cannot recall exercising his discretion in a case like the defendant's, where he admitted he had no legal status or ability to enter the U.S. and did not present any humanitarian concerns or issues. Id.
If a noncitizen did not understand Spanish or did not understand the removal process, that comprehension issue would be documented in the record of sworn statement. Id. at 107. For instance, Agent Lawrence has documented on the sworn statement that an interpreter was used for the noncitizen because of language issues. Id. at 107-108.
If a supervisor decided that expedited removal was appropriate notwithstanding a humanitarian concern raised by the noncitizen, that decision “could be protested” and taken to a third line supervisor. Id. at 115. Agent Lawrence can only think of one instance where he “protested to a point where it did go to the third line supervisor,” and that was a case involving children. Hr'g Tr. 8/21/2023 (Doc. 51) at 115.
Direct Examination of Branden King:
Branden King is employed with the U.S. Border Patrol at Tucson Section Headquarters as the Acting Division Chief of the Law Enforcement Operational Programs Division. Hr'g Tr. 9/20/23 (Doc. 52) at 7. In that position, he has daily executive oversight over several programs within the operational programs division: technological deployments and maintenance, the Arizona Air Coordination program and 911 rescue program, the specialty programs unit (e.g., UTVs, ATVs, dirt bikes, horse patrol, K-9), the prosecution's liaison office, and processing and detention. Id. at 7-8.
Agent King joined the Border Patrol in 2007. Id. at 10. He first spent four-and-a-half months at the Border Patrol training academy. Id. He then entered on duty at the Douglas Border Patrol station where he had to complete a field training program with a field training officer. Id. That entire process was about a year. Hr'g Tr. 9/20/2023 (Doc. 52) at 10. He received training on Spanish and on “the processes and documents that are associated with expedited removals[.]” Id. With respect to expedited removals, Agent King was trained on immigration/nationality law, conducting records checks, and the forms used for immigration files. Id. at 11.
“The Spanish component at the Border Patrol Academy is classroom instruction” for several hours a day. Id. It also included “conversational-like material with hired role player actors.” Id. There were weekly Spanish proficiency tests while at the academy. Hr'g Tr. 9/20/2023 (Doc. 52) at 11-12. For example, a trainee is provided with a question in English that must be translated into Spanish and then the response is translated into English. Id. at 11. A portion of the training instructs agents “on proper delivery of questions, such as the jurat questions,” which would likely be asked of noncitizens. Id. at 12. Agents would have to ask the question verbatim and translate the specific answer. Id.
Field training involves “working side by side with a journeyman level Border Patrol Agent” who has “progressed through all of the various stages of training and has several years of experience under their belts in the job.” Id. at 13. Agent King successfully completed the academy and journeyman training. Hr'g Tr. 9/20/2023 (Doc. 52) at 13.
When Agent King was assigned to the Douglas Border Patrol station, his job was to patrol the border. Id. He operated various pieces of technology equipment and was assigned to processing duties for about one-third of his time at the Douglas station. Id. As a result, he became familiar with the processes and procedures required to process individuals for expedited removal. Id. at 14. He worked at the Douglas station for four years. Id.
Agent King was then promoted to a supervisory Border Patrol agent in 2011 and was assigned to the Willcox Border Patrol station. Hr'g Tr. 9/20/2023 (Doc. 52) at 14. In January of 2013, he was still a supervisor at that station. Id. at 15. His duties included assigning work to journeyman Border Patrol agents, “whether that be patrolling the border or being assigned to checkpoints, operation of technology equipment or processing.” Id. As a first line supervisor, Agent King was responsible for making sure all Border Patrol directives were communicated to the line agents. Id. With respect to processing, his job was “to identify the proper classification or processing pathway for an individual migrant and assign that work to a Border Patrol agent.” Id. at 16. After that work was completed, Agent King would review the agent's paperwork, sign off as the reviewing officer, and provide the paperwork to a second line supervisor “to review and affirm that it was correct and complete.” Hr'g Tr. 9/20/2023 (Doc. 52) at 16.
In 2019, Agent King was promoted to an operations officers within the Tucson Sector Law Enforcement Operations Division. Id. In that role, he “coordinated with field commanders and assisted in delivering expectations and support to field commanders on behalf of their supervisors and the division chief of operations.” Id. As a result, it was important for Agent King to remain current with Border Patrol directives and polices regarding the removal process. Id. at 17. Agent King left this position after about a year when he was promoted to the watch commander position at the Willcox station. Id.
“A watch commander is the supervisor of the first line supervisors, so [he] was responsible for an entire shift.” Hr'g Tr. 9/20/2023 (Doc. 52) at 17. If the patrol agent in charge was absent, Agent King would serve in that role. Id. Agent King explained that first line supervisors assign work to the agents, while the watch commander “is doing a lot of auditing work, scheduling and validation of all of the work that is happening by the first line managers.” Id. at 17-18. Agent King was promoted to his current position in October of 2022. Id. at 18.
Based on the positions that Agent King has held over the years, he is familiar with the training that agents receive on processing expedited removals. Id. at 19. At the Border Patrol academy, agents are exposed to immigration and nationality law, search and seizure authority, arrest authority, Spanish language instruction, and use of force training. Hr'g Tr. 9/20/2023 (Doc. 52) at 19. Over the course of his career, Agent King has had situations where there were communication difficulties with someone being processed. Id. at 20. He explained that it is not uncommon to encounter a person who does not speak Spanish or there is a language barrier. Id. In those situations, the Border Patrol utilizes contracted languages services via telephone. Id.
Agent King is also familiar with having a witness agent present during processing and the “paperwork that a witness signs off on when someone is processed for expedited removal.” Id. at 21. If a witness agent “signs off' on the paperwork, it means that the witness agent personally witnessed the conversation between the processing agent and the noncitizen and the witness agent is validating that the noncitizen's answers were accurately written by the processing agent. Hr'g Tr. 9/20/2023 (Doc. 52) at 22. It would not be appropriate for the witness to sign the paperwork if they had not been present for and heard the entire conversation during processing. Id.
Testimony returned to Agent King's duties as a first line supervisor in 2013 at Willcox station. Id. In that position, Agent King would review the files for individuals presented for processing before the person was assigned to the agent who would be doing the processing. Id. at 22-23. In terms of the discretion that he gave to the processing agent, Agent King testified as follows:
[U]pon my review of the migrant's history, current processes available to us to use, I would have just assigned the work and said, this migrant, as an example, would need to be processe[d] as an expedited removal or a reinstatement of [a] prior order of removal, and the agent would have accomplished that work and brought it back to me for review and validation.Id. at 23. He further explained that the processing agent would have “no discretion, absent uncovering facts unknown to me, in which case he would have just brought that back to me to be reconsidered.” Hr'g Tr. 9/20/2023 (Doc. 52) at 23.
As a first line supervisor, Agent King also had no discretion regarding “expedited removal or [some] other type of removal.” Id. He explained that from 2011 through the pandemic the Tucson Sector “was operating under the consequence delivery initiative . . . which really provided a framework for classification of individual migrants and the appropriate consequence to be delivered to them in an order of perceived effectiveness.” Id. at 23-24. The endeavor of the Tucson Sector was to make it “the most undesirable sector to cross illegally in the Southwest border.” Id. at 24. The goal was to reduce recidivism by delivering a consequence to every migrant who crossed the border illegally. Id.
Testimony turned to a document titled “Consequence Delivery System Guide” (“Gov't Ex. 8”), which is a “chart or guide” that would have been used in 2013. Hr'g Tr. 9/20/2023 (Doc. 52) at 24-25. This chart was posted in every processing and detention facility in the Tucson Sector. Id. at 26. Every processing agent had to utilize this chart in analyzing how an undocumented person “needed to be dealt with when they came in to be processed[.]” Id. at 27. The chart “provides a prioritization framework” for “using a consequence by order of the most to the least effective consequence for that migrant classification.” Id. “Voluntary returns or voluntary removals of any migrant was the last, or the least effective, consequence and were almost in no circumstance used.” Id. at 28. The voluntary return or removal process would only be used because of a significant humanitarian concern; for example, a Mexican unaccompanied minor or a woman in a very late-term pregnancy. Hr'g Tr. 9/20/2023 (Doc. 51) at 28. In 2013, absent a humanitarian concern, the least possible “consequence applied would have been an expedited removal.” Id. at 30-31. Again, that was because Border Patrol policy was to “maximize the use of all consequences and sometimes multiple consequences.” Id. For example, a person could be processed for expedited removal and referred for criminal prosecution. Id. at 31-32.
In January of 2013, a processing agent could not have authorized a voluntary return for any individual. Id. at 32. Agent King explained a processing agent could not have done that because a first line supervisor assigns the processing work and the ultimate removal decision has to go through the second line supervisor as well. Hr'g Tr. 9/20/2023 (Doc. 52) at 32. Agent King would have never given permission for “a healthy Mexican adult who was traveling alone to be processed for a voluntary withdrawal[.]” Id. at 31. And he has never personally witnessed any supervisor give such a person a voluntary return while the consequence delivery system was in effect from 2011 until the pandemic. Id. at 38-39.
The Border Patrol does not use the “Inspector's Field Manual.” Id. at 35. Border Patrol gets direction from the Chief of the U.S. Border Patrol in Washington, D.C. Id. The consequence delivery system, like all directives, came from the Chief of the Border Patrol. Hr'g Tr. 9/20/2023 (Doc. 52) at 35.
A processing agent conducting an interview of a noncitizen during an expedited removal proceeding gives the person “an opportunity to present favorable information.” Id. However, other witnesses are not ordinarily interviewed during that proceeding and interviewing other witnesses is not a function of a processing agent. Id. at 36. A processing agent also does not subpoena documents. Id. If a processing agent cannot immediately make a determination on alienage, the migrant would be referred to “see an immigration judge using a warrant of arrest and a notice to appear.” Id. It is not the processing agent's job to resolve questions of fact regarding citizenship. Hr'g Tr. 9/20/2023 (Doc. 52) at 36.
Border Patrol agents also “do not validate fear claims for asylum or otherwise” or take evidence on that issue. Id. The migrant would be referred to another agency for a credible fear interview with an asylum officer. Id.
Cross-examination:
Agent King was not involved in the defendant's removal proceedings. Id. at 41. In fact, he has no knowledge about the defendant or the removal proceedings and did not review any of the defendant's expedited removal documents. Id.
Agent King did not train Agent Lawrence and has no personal knowledge of what specific classes that Agent Lawrence attended at the Border Patrol Academy. Hr'g Tr. 9/20/23 (Doc. 52) at 42. He did not review Agent Lawrence's academy records and is not familiar with Agent Lawrence's proficiency in Spanish. Id.
Some of the forms used to process a person for expedited removal are available in Spanish. Id. at 45. For example, “the list of free legal services is available in Spanish.” Id. Also, if a person is given a notice to appear and released from custody, the forms referencing a court appearance would be in Spanish. Id. at 48. If a form is required to be delivered to the migrant in Spanish, the agent would do so. Hr'g Tr. 9/20/23 (Doc. 52) at 46. But the “immigration forms within the confines of the A-File” which are used for an expedited removal are not in Spanish. Id. at 48.
Agent King is aware that a noncitizen must sign the back of the notice of removal (Form I-860). Id. at 50. He agreed with counsel that the signature “shows and proves that a noncitizen was notified of the charges against him[.]” Id. The absence of the defendant's signature on the notice of removal reflects a failure and oversight by the processing agent and the supervisors. Id.
Agent King agreed with counsel that sometimes individuals crossing through the desert that he has encountered are in despair, dehydrated, and sometimes lost. Hr'g Tr. 9/20/23 (Doc. 52) at 51. Agent King has personally responded to migrants in distress in the desert; they usually were lost off the intended trail but were not necessarily unaware that they were in the United States. Id. at 52. Agent King had situations where the migrant required medical treatment, but that would have happened well in advance of processing. Id. at 53. Agents do not make it a habit or practice to deliver immigration documents to someone who is not lucid or able to understand the process. Id. at 54.
Border Patrol is an entity under the Customs and Border Protection Bureau (“CBP”). Id. at 55. The three components of the CBP are the Border Patrol, Office of Field Operations (“OFO”), and Office of Air and Marine. Hr'g Tr. 9/20/23 (Doc. 52) at 55. OFO is “a peer to the Border Patrol, meaning that they're a separate entity; they work at land ports, seaports, airports.” Id. at 56.
Testimony turned to CBP Directive #3340-043. Id. at 57. Agent King agreed with counsel that the directive was issued by CBP. Id. However, he disagreed that this directive applies to the Border Patrol simply because Border Patrol is a component of CBP. Id. He does not see “any illusion or reference to Border Patrol” in the directive. Hr'g Tr. 9/20/23 (Doc. 52) at 57. Agent King is not familiar with this directive. Id. at 58. He testified that the directive refers “to directors of field offices, which is an Office of Field Operation.” Id. He explained that every responsible party listed in the directive works:
for the Office of Field Operations: the Executive Director of Admissibility and Passenger Programs, Directors of Field Operations, port directors, field managers and supervisors at the port directors' locations. None of those are places that the Border Patrol is assigned to work. We work between the ports of entry. That's why I'm saying that I've never seen this document, nor does it appear, at least in my opinion, that it applies to anything between ports of entry but, rather, specifically at ports of entry.Id. at 60.
Agent King testified that CBP officers are in a different position than Border Patrol agents - “[t]hey are not one in the same.” Id. at 60-61. Agent King acknowledged that the directive says that “the purpose of this directive is to provide a consistent application of CBP's discretionary authority . . . in the enforcement of immigration laws nationwide.” Hr'g Tr. 9/20/23 (Doc. 52) at 62. However, his opinion is that this CBP directive only applies to ports of entry. Id. at 65.
He testified that there was not a directive that said that Border Patrol agents “shall use discretionary authority[;] [t]he only directive or expectation we had was to resolve immigration cases according to the Consequence Delivery System charts.” Id. at 66. The Consequence Delivery System was initiated in the Tucson Sector in 2011, and in 2013 it spread to the entire Southwest border. Id. at 69. It ended in 2020 when the pandemic began because “there was extreme limitations on court capacities” and immigration detention facilities “had overcrowding challenges” because of the need to isolate certain detainees due to COVID. Id. The Consequence Delivery System was the result of a memorandum issued “by the Chief of the Border Patrol to each individual sector chief.” Hr'g Tr. 9/20/23 (Doc. 52) at 69-70.
Agent King agreed with counsel that the Notice of Expert filed by government counsel states that under the Consequence Delivery System, “all migrants in Tucson Sector receive either an expedited removal or criminal prosecution[.]” Id. at 74. However, he reiterated that there were some exceptions: e.g., “an unaccompanied juvenile Mexican migrant would have been offered a voluntary return[.]” Id. at 71. Agent King agreed that the Consequence Delivery System chart provides for the following possible consequences for a migrant who is apprehended for the first time: standard prosecution, streamline prosecution, a warrant of arrest/notice to appear, quick court, and voluntary return. Id. at 76. He also agreed that a voluntary return “was a possibility;” but he added that it was “the least effective and efficient[.]” Id. Agent King testified that Border Patrol agents “refer to voluntary return or withdrawal of application” synonymously. Hr'g Tr. 9/20/23 (Doc. 52) at 67.
Re-direct examination:
Agent King made clear that the first time that he saw the CBP directive “was during the prep for this hearing.” Id. at 81. Agent King testified that if this directive was presented to him in 2013, he “would have understood it to mean that it only applies to Customs and Border Protection officers at ports of entry.” Id. at 84. In fact, the language used in the directive makes it clear to him that it was specific to the Office of Field Operations component of CBP and not Border Patrol. Id. Specifically, the “position titles of the persons charged with responsibilities within this directive are all Office of Field Operations positions[.]” Id. Additionally, the directive says “that it applies to ports of entry, and the Border Patrol specifically works between ports of entry and not at ports of entry.” Hr'g Tr. 9/20/23 (Doc. 52) at 84.
If a CBP directive applies to the Border Patrol as well as another component of CBP, “it will specifically say sector chiefs and port directors, sector chiefs being the Border Patrol heads of sectors, port directors being similar in the Office of Field Operations world.” Id. at 84-85. Agent King added that “[t]here are also directives that are only applicable to one or the other.” Id. at 85.
The final subject of testimony was the signature requirement on the Form I-860. Id. at 86. Agent King testified that the regulation that requires that the noncitizen sign the back of the Form I-860 was frequently overlooked. Id. Agents had not been trained on this requirement. Hr'g Tr. 9/20/23 (Doc. 52) at 85. Border Patrol has since resolved that issue by creating a signature line for the noncitizen on the I-860. Id. at 86. Based on Agent King's experience, the processing agent's signature on the certificate of service means that the agent “articulated to the migrant the content on that form before affirming that they'd been delivered that information.” Id. at 87. It would not be appropriate for a processing agent “to sign off on it if they hadn't explained the form to the migrant[.]” Id. Again, based on Agent King's training and experience, he is confident that agents who completed the training academy know that “they have to go over that form with the migrant before they sign off on the notice[.]” Id.
DISCUSSION
The Supreme Court has held that a criminal defendant has a Fifth Amendment right to some meaningful review of a prior removal order used to support a criminal prosecution for Reentry of a Removed Alien. United States v. Mendoza-Lopez, 481 U.S. 828 (1987). Subsequently, Congress mandated that to successfully challenge a prior removal order a defendant must prove that: (1) s/he exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation/removal proceedings at which the order was issued improperly deprived the defendant of the opportunity for judicial review; and (3) the entry of the order of removal was fundamentally unfair. 8 U.S.C. § 1326(d).
With respect to the first and second requirements, the Ninth Circuit has held, and the government concedes, that expedited removals of inadmissible arriving noncitizens do not provide for administrative or judicial review, except in limited circumstances that are not present in the case at hand. As a result, the Court need only address whether the entry of the defendant's removal order was fundamentally unfair.
In order to prove that the removal order was fundamentally unfair, a defendant must prove that the defects in underlying deportation/removal proceeding violated due process and the defects caused prejudice. United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004). The Ninth Circuit has held that a defendant need only show that it was “plausible” that he would not have been deported/removed to demonstrate prejudice. United States v. Muro-Inclan, 249 F.3d 1180, 1184 (9th Cir. 2001).
A. Border Patrol agents are not inferior officers under the Appointments Clause
The Appointments Clause of the U.S. Constitution “prescribes the exclusive means of appointing ‘Officers.'” Lucia v. S.E.C., 138 S.Ct. 2044, 2051 (2018). The
Appointments Clause categorizes officers into two types: (1) “Officers” who must be nominated by the Present and confirmed by the Senate; and (2) “inferior Officers” who must be appointed by the President, Courts of Law, or Heads of Departments. U.S. CONST. art. II, § 2, cl. 2. “Non-officer employees,” who are “part of the broad swath of ‘lesser functionaries' in the Government's workforce,” do not implicate the Appointments Clause. Lucia, 138 S.Ct. at 2051.
In distinguishing between “officers” and “non-officer employees,” the Supreme Court has held that to be an “Officer of the United States” covered by Appointments Clause, a person must “exercis[e] significant authority pursuant to the laws of the United States.” Buckley v. Valeo, 424 U.S. 1, 125-126 (1976). A court must consider the following factors to determine whether agency staff are “inferior Officers” who must be appointed: (1) whether their jobs are “continuing and permanent,” and not “occasional or temporary”; (2) whether they take testimony, by, for example, receiving evidence and examining witnesses; (3) whether they conduct trials, rule on motions, administer oaths, and generally regulating the course of a hearing; (4) whether they rule on the admissibility of evidence “thus critically shap[ing] the administrative record”; and (5) whether they “have the power to enforce compliance with discovery orders,” like by “punish[ing] all contemptuous conduct.” Lucia, 138 S.Ct. at 2053.
The defendant relies on Lucia in arguing that Border Patrol agents are inferior Officers under the Appointments Clause. In Lucia, the Supreme Court held that SEC administrative law judges (“ALJs) are “officers” under the Appointments Clause. The Court concluded that the ALJs had “nearly all the tools of federal trial judges.” Specifically, the ALJs have the authority to take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders. Id. at 2053.
Lucia does not support the defendant's argument. In fact, that case undercuts the defendant's argument because the testimony of Agents King and Lawrence clearly establishes that a Border Patrol agent conducting an expedited removal proceeding does not have the tools of federal trial judges. The authority and discretion of a processing Border Patrol agent is also not remotely akin to that of an ALJ. The agent does not take testimony, conduct trials, rule on the admissibility of evidence, or shape the administrative record by issuing subpoenas, enforcing discovery orders, or making contempt findings; they also do not administer oaths, rule on motions, or regulate hearings or the conduct of the parties or counsel. The processing agent simply interviews the noncitizen. If the noncitizen is inadmissible under one the statutory grounds for expedited removal, then the agent “shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intent to apply for asylum . . . or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i); 8 C.F.R. § 235.3(b)(2)(i). Therefore, the processing agent does not exercise significant discretion; in fact, the agent's “discretion is highly constrained” and “subject to consultation requirements, to guidelines, and to supervision[.]” Tucker v. Comm'r, 676 F.3d 1129, 1134-35 (D.C. Cir. 2012) (appeal officers within the IRS perform ministerial duties and do not have significant authority or discretion).
In a supplemental pleading, the defendant asserts that Duenas v. Garland, 2023 WL 5487957 (9th Cir. 2023) also supports his argument that Border Patrol agents are inferior Officers. In that case, the Ninth Circuit held that Immigration Judges are “officers” who are subject to the Appointments Clause because their “responsibilities are legally defined and continuous” and “they wield substantial authority in “conducting adversarial hearings in removal proceedings.” Id. The Court finds that Duenas also undercuts the defendant's argument because, once again, a processing Border Patrol agent does not conduct adversarial proceedings and their discretion is limited. In fact, as noted earlier, when a noncitizen raises a claim of asylum or fear of persecution, the expedited removal proceeding does not go forward, and instead, the noncitizen's case is referred to an immigration officer within CBP (e.g., an Immigration Judge or asylum officer) so that person can conduct a proceeding that is more akin to a trial or evidentiary hearing. This referral process further demonstrates the limited authority and discretion afforded to an agent conducting an expedited removal proceeding.
For the reasons stated above, the Court concludes that the defendant has not proven that a Border Patrol agent who conducts an expedited removal proceeding is an inferior Officer for purposes of the Appointments Clause. As such, it is recommended that the motion to dismiss be denied on this ground.
B. The Defendant has not shown that his Failure to Sign the Form I-860 Violated his Due Process Rights.
There are regulations that codify an immigration officer's duties during expedited removal proceedings. The regulation at issue here is 8 C.F.R. § 235.3(b)(2)(i), which provides that the immigration officer “shall serve the alien with Form I-860 and the alien shall sign the reverse of the form acknowledging receipt.” The regulation notes that the purpose of the Form I-860 is to “advise the alien of the charges against him.” Id.
The Court first notes that the Ninth Circuit has held that even if an officer violated a regulation, “the failure to follow a regulation does not necessarily mean that the removal order was fundamentally unfair.” United States v. Ornelas-Dominguez, 2021 WL 3039420, at *1 (9th Cir. July 19, 2021). This Court has previously held that a defendant's failure to sign the back of the Form I-860 is not a due process violation absent some evidence that the defendant was not advised of the contents of that document or did not understand the document. United States v. Enriquez-Venzor, 2019 WL 3068212, at *8 (D. Ariz. July 12, 2019); report and recommendation adopted, 2019 WL 4736992 (D. Ariz. Sept. 27, 2019); see also United States v. Ramos-Zepeda, 2016 WL 1720188, at *11 (D. Ariz. Apr. 29, 2016), report and recommendation adopted, 2016 WL 3345517 (D. Ariz. June 16, 2016).
The defendant argues that Agent Lawrence's failure to have him sign the Form I860 “undermines the assurance that he was advised of his due process rights at the time of his removal.” Def's Mot. to Dismiss Indictment (Doc. 21) at 14 (quoting United States v. Mejia-Avila, 2016 WL 1423845, at *1 (E.D. Wash. Apr. 5, 2016). In a declaration submitted as an exhibit to the motion to dismiss, the defendant sets forth the reasons why his due process rights were violated during the expedited removal process. The defendant alleges that: (1) he did not understand the content of the expedited removal documents; (2) he does not speak or read English; (3) the processing agent spoke to him in English and Spanish; (4) he did not understand the agent's Spanish; (5) the agent presented him with documents written in English and he was not given an option other than to sign them; (6) he signed the documents but did not understand their contents; (7) the agent did not explain to him that he was in formal removal proceedings and would be ordered removed from the United States; (8) he was not offered a chance to call an attorney; (9) the agent did not read him the warning that an expedited removal carries a 5-year ban to reentry; (10) the agent did not give him an opportunity to respond to charges in the sworn statement; (11) he was not advised of the charges on the Notice and Order of Removal, he was never served with a copy of that document, and did not sign the reverse side of that document; and (12) the agent did not ask him if any corrections needed to be made.
There are two problems with the defendant's declaration. First, unlike witness testimony which is subject to cross-examination, the government cannot test the veracity of the defendant's statements. Second, if the defendant's sweeping statements are true, that would mean that the expedited removal process consisted only of Agent Lawrence having the defendant sign all but one of the necessary documents for an expedited removal. Agent Lawrence's credible testimony makes clear that he did not conduct an expedited removal in that manner and that is not what happened during the defendant's expedited removal proceeding. See F.C.C. v. Schreiber, 381 U.S. 279, 296 (1965) (“In the absence of clear evidence to the contrary, courts presume that public officers properly discharge their duties . . . .”).
It is understandable that Agent Lawrence did not specifically recall conducting the defendant's expedited removal given the hundreds of expedited removals that he conducted during the years he worked as a processing agent. But he thoroughly detailed the process he always followed and adhered to in conducting expedited removal proceedings Specifically, he confirmed the primarily language spoken by the noncitizen; if that language is Spanish, he confirmed that the noncitizen understands his Spanish; he generally explained what was going to happen during the expedited removal proceeding; he explained in Spanish each document utilized during the expedited removal proceeding; he confirmed with the noncitizen that the information provided was accurate and asked if any corrections need to be made; and he asked the noncitizen if he has any questions. Furthermore, during the course of the interview, he asked if the noncitizen had any humanitarian needs or extenuating circumstances. The removal documents relevant to the defendant, including the various signatures and the verbatim answers provided by the defendant, make Agent Lawrence confident that he thoroughly explained the removal process and the applicable documents to the defendant, that the defendant understood the process and the contents of the documents and did not have questions, and that the defendant did not raise a humanitarian need or any extenuating circumstance.
For the reasons discussed above, the Court finds that the defendant has not demonstrated that his due process rights were violated because Agent Lawrence's failed to follow the regulation that requires a noncitizen to sign the Form I-860. As a result, it is recommended that the motion to dismiss be denied on this ground.
C. The Defendant's Expedited Removal was Invalid.
The defendant's final argument in support of dismissal of the indictment turns on whether there was statutory authority under the Immigration and Nationality Act (“INA”) for the defendant to be subjected to an expedited removal proceeding. The defendant asserts that there was not a basis on which to determine if he was inadmissible under 8 U.S.C. § 1182(a)(7) because at the time he was apprehended, he had not submitted an application for admission into the United States and he was not applying for admission into the United States at the border. Stated another way, the defendant argues that Section 1182(a)(7) does not allow for an expedited removal of a noncitizen found in the interior United States. Rather, this statute only applies to arriving aliens at the border.
“The complex provisions of the INA have provoked comparisons to a ‘morass,' . . . a ‘Gordian knot,' . . . and ‘King's Minos's labyrinth in ancient Crete[.]'” Torres v. Barr. 976 F.3d 918, 923 (9th Cir. 2020), Courts must “read this dense statute against the backdrop of . . . constitutional principles, administrative law, and international treaty obligations.” Torres, 976 F.3d at 923. As a result, “[d]ivining its meaning is not ordinarily for the faint of heart.” Id. As will become evident, no truer words have ever been spoken.
Expedited removal orders are authorized under 8 U.S.C. § 1225(b)(1)(A)(i) which provides that:
[i]f an immigration officers determines that an alien . . . who is arriving in the United States or is described in clause (iii) is inadmissible under Section 1182(a)(6) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien
indicates an intention to apply for asylum under Section 1158 of this title or a fear of persecution.
Section 1225(b)(1)(A)(iii)(I) provides, in pertinent part, that “[t]he Attorney General may apply clauses (i) and (ii) of this subparagraph to any or all aliens described in subclause (II) as designated by the Attorney General.” Subclause II of Section 1225(b)(1)(A)(iii), titled “Aliens described,” provides that:
[a]n alien described in this clause is an alien who is not described in subparagraph (f), who has not been paroled into the United States, and who has not affirmatively shown, to the satisfaction of an immigration officer, that the alien has been physically present in the United States continuously for the 2-year period immediately prior to the dates of the determination of inadmissibility under this subparagraph.8 U.S.C. § 1225(b)(1)(A)(iii)(II).
Section 1225(a)(1), Title 8, United States Code, entitled “Aliens treated as applicants for admission,” provides that: “[a]n alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival . . .) shall be deemed for purposes of this chapter an applicant for admission.”
Section 1182(a)(7), Title 8, United States Code, which was the statutory provision used to remove the defendant, renders inadmissible:
any immigrant at the time of application for admission
(I) who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the regulations issued by the Attorney General under Section 1181(a) of this title[.]8 U.S.C. § 1182(7)(A)(i).
In the case at hand, the government argues that the defendant was inadmissible under Section 1182(a)(7) because he did not have a valid entry document “at the time of application for admission.” Because Section 1225(a)(1) provides that an alien present in the United States unlawfully is treated as “an applicant for admission,” he was subject to expedited removal proceedings under Section 1225(b)(1)(A)(i). The government essentially argues that the definition of “Aliens treated as applicants for admission” set forth in Section 1225(a)(1) broadens the scope of Section 1182(a)(7) and allows for the expedited removal of both noncitizens who apply for admission at a port of entry and aliens unlawfully present in the interior of the United States.
The defendant argues that the phrase “at the time of application for admission” used in Section 1182(a)(7) means something different than the phrase “an applicant for admission” used in Section 1225(a)(1). Specifically, “at the time of application for admission” means the point in time when the noncitizen applied for entry into the United States at the border. Because there is no evidence that the defendant applied for entry into the United States at the border, Section 1182(a)(7) did not authorize the expedited removal proceedings. As a result, his removal was fundamentally unfair.
At first blush, the defendant's argument seems like a stretch given the interplay between the statutes discussed above. However, there is case law that supports the defendant's exact argument. Two district courts within the Ninth Circuit (one in the District of Arizona) have held that noncitizens who were arrested in the desert away from the border after crossing illegally into the United States are not removable under Section 1182(a)(7) because “at the time of application for admission” means “the moment of applying for entry at the border.” In those cases, like in the case at hand, the defendants were removed under Section 1182(a)(7) using an expedited removal proceeding conducted by a Border Patrol Agent. In reaching their conclusions, these district courts both rely on the Ninth Circuit's decision in Torres and reason that the Supreme Court's discussion of expedited removal proceedings in Department of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959 (2020) is dicta, and as such, not binding authority. The Court first turns to Thuraissigiam and Torres before addressing the district court cases directly on point to the issue at hand.
In Thuraissigiam, the noncitizen crossed the southern border without inspection or a valid entry document and was apprehended by a Border Patrol agent within 25 yards of the border. 140 S.Ct. at 1967. The noncitizen was detained for expedited removal. Id. The noncitizen claimed a fear of returning to his home country. Id. The asylum officers credited his account but determined a lack of a credible fear of persecution. Id. That decision was affirmed by an immigration judge. Id.
Thuraissigian clearly did not involve the issue present here because the noncitizen did not go through expedited removal proceedings. He was referred to an asylum officer because he made a fear claim. The issue before the Supreme Court was the constitutionality of the restrictions placed on the ability of asylum seekers to obtain review under the federal habeas statute. However, the Court discussed some of immigration law statutes referenced above.
The Court noted Section 1182(a)(7) provides that aliens who lack a valid entry document “at the time of application for admission” are “inadmissible” and therefore “removable.” Id. at 1264. The Court further noted that “[a]n alien who arrives at a ‘port of entry,” i.e., a place where an alien many lawfully enter, must apply for admission. An alien like respondent who is caught trying to enter at some other spot is treated the same way” under Section 1225(a)(1) & (3). Id.
The Court went on to describe “the expedited procedures for certain ‘applicants for admission.'” Specifically, the Court stated that:
For these purposes, “[a]n alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival . . .) is deemed “an applicant for admission.” Section 1225(a)(1). An applicant is subject to expedited removal if, as relevant here, the applicant (1) is inadmissible because he or she lacks a valid entry document; (2) had not “been physically present in the United States continuously for the 2-year period immediately prior to the date of the
determination of inadmissibility”; and is among those whom the Secretary of Homeland Security has designated for expedited removal. Sections 1225(b)(1)(A)(i), (iii)(I)-(II). Once “an immigration officer determines” that a designed applicant “is inadmissible,” “the officer [must] order the alien removed from the United States without further hearing or review.” Section 1225(b)(1)(A)(i).Id. at 1964-65.
The Supreme Court's discussion of the expedited removal process, even if dicta, certainly supports the government's argument that an alien like the defendant who is found unlawfully in the United States is an “applicant for admission,” and is treated the same way as an alien seeking entry at a port of entry under the expedited removal statute. However, the defendant argues that Ninth Circuit's decision in Torres, and the district court cases that rely on that case, make clear that Thuraissigiam does not control the analysis of the issue in the case at hand.
The Court notes at the outset that Torres did not involve an expedited removal proceeding and the Ninth Circuit never discusses or even cites Thuraissigiam. Moreover, Torres involved a unique factual situation. The noncitizen in that case had been lawfully living and working in the Commonwealth of the Mariana Islands (“CNMI”) for over a decade. Torres, 976 F.3d at 920. “Though she had never applied to enter the United States, she abruptly found herself within the westernmost border of our country.” Id. The Board of Immigration Appeals “ordered her removed on the ground that she did not possess a valid entry document ‘at the time of [her] application for admission” into the United States, in violation of 8 U.S.C. 1182(a)(7)(a)(i)(I)[.]” Torres, 976 F.3d at 920. As discussed below, the noncitizen's inadmissibility stemmed from Congress's imposition of the United States immigration laws on the CNMI during the time the noncitizen had been residing in the CNMI.
In 1976, a Covenant to Establish a Commonwealth of the Northern Mariana Islands was enacted which, among other things, made “certain CNMI citizens and residents, as well as anyone born on CNMI soil, . . . citizens of the United States.” Id. at 921. However, the CNMI government retained nearly exclusive control over immigration to the CNMI. Id. The CNMI government administered its own immigration law for three decades. Id. During that time, the CNMI government permitted large numbers of temporary guest workers, who lacked any U.S. immigration status, to work in the CNMI. Id.
As the population of the CNMI grew exponentially, “Congress grew increasingly concerned by what it saw as the ‘ineffective border control[s]' of the territory.” Torres, 976 F.3d at 921 (citing S. Rep. No. 110-324, at 2-3). Id. As a result, Congress enacted the Consolidated Natural Resources Act of 2008 (“CNRA”), which imposed United States immigration laws, including the Immigration and Nationality Act (“INA”), within the CNMI. Id. at 921-22. “Under the INA, a noncitizen present in the United States without being formally admitted or temporarily paroled into the country is inadmissible.” Id. at 922 (citing 8 U.S.C. 1182(a)(6)(A)(i)). The sudden imposition of the INA meant that thousands of guest workers and other lawful residents under CNMI law could have been “removable overnight.” Id. To ensure that these individuals were not unfairly penalized and the CNMI economy would not be destabilized, “Congress provided a two-year reprieve in which any alien ‘lawfully present in the Commonwealth' on November 28, 2009 could not be removed for being present in the United States without admission or parole in violation of § 1182(a)(6).” Torres, 976 F.3d at 922 (citing 48 U.S.C. § 1806(e)(1)(A)).
In 2010, “the federal government began charging some CNMI residents as removable under 8 U.S.C. § 1182(a)(7), a provision of the INA not covered by the . . . two-year reprieve, for failing to possess a valid entry document ‘at the time of application for admission.'” Torres, 976 F.3d at 922. Many CNMI residents, like the noncitizen in that case, “challenged their removal on the basis that, because they had not yet submitted an application for admission into the United States, they were not removable under this provision.” Id.
The Ninth Circuit's task was to “construe the meaning of the phrase ‘at the time of application for admission'” used in Section 1182(a)(7). Id. at 924. After noting that its task was “relatively straightforward,” the court held that “the phrase refers to the particular point in time when a noncitizen submits an application to physically enter into the United States.” Id. at 923-24. The court reasoned that “[b]y using this phrase solely in connection with documents required to lawfully cross the United States border, § 1182(a)(7) signals that the time of application for admission is the time when a noncitizen seeks permission to physically enter United States territory, regardless of whether the noncitizen is seeking entry from outside the country or inside the country at a port of entry.” Torres, 976 F.3d at 924. The Court further reasoned that the phrase “at the time” imposes a “temporal requirement” - i.e., a distinct point in time -- and “stretching the phrase ‘at the time of application for admission' to refer to a period of years would push the statutory text beyond its breaking point.” Id.
In reaching its conclusion, the Torres court overruled Minto v. Sessions, 854 F.3d 619 (9th Cir. 2017), which “arrived at a different reading of 1182(a)(7) by relying on 8 U.S.C. 1225(a)(1) [the expedited removal statute], which provides that ‘[a]n alien present in the United States who has not been admitted . . . shall be deemed for purposes of this chapter, an applicant for admission.'” Torres, 976 F.3d at 927 (alterations other than description of statute in original). Torres held that the Minto court “conflated the term ‘applicant for admission' from § 1225(a)(1) with the term ‘application for admission' in § 1182(a)(7)[.]” Torres, 976 F.3d at 927. The Torres court further observed that the Minto court made “two leaps of logic”: (1) because the noncitizen was present in the United States at the time the CNRA was enacted, he was deemed to be an “applicant for admission;” and (2) “that he should therefore be deemed to have made an actual application for admission under 1182(a)(7).” Torres, 976 F.3d at 927. “This reading failed to understand that the phrase ‘applicant for admission' is a term of art denoting a particular legal status[.]” Id.
The Torres court then turned to a discussion of what led to the enactment of the expedited removal statute (8 U.S.C. § 1225) and how that statute operates. Section 1225(a)(1) was added to the INA in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”). Torres, 976 F.3d at 927. Prior to the passage of IIRIRA, the INA provided for two types of removal proceedings: deportation hearings and exclusion hearings. Id. A deportation hearing was the usual way for proceeding against an alien who was physically but unlawfully present in the United States. Id. An exclusion hearing was the usual way of proceeding against an alien who was outside the United States and seeking admission into the United States. Id. An alien present in the United States unlawfully could “take advantage of greater procedural and substantive rights afforded in deportation proceedings,” while an alien who presented themselves at a port of entry were subject “to more summary exclusion proceedings.” Id. at 927-28. “This created an anomaly whereby immigrants who were attempting to lawfully enter the United States were in a worse position than persons who had crossed the border unlawfully.” Torres, 976 F.3d at 928.
IIRIRA did away with this entry doctrine anomaly. Id. It replaced deportation and exclusion proceedings with a general removal proceeding. Id. And it added 1225(a)(1), which “ensures that all immigrants who have not been lawfully admitted, regardless of their physical presence in the country, are placed on equal footing in removal proceedings under the INA - in the position of an ‘applicant for admission.'” Id. In removal proceedings, “the relevant distinction for procedural purposes is whether the immigrant has been lawfully admitted, regardless of actual physical presence.” Id.
The court granted the noncitizen's “petition to review to the extent the BIA determined that she was removable” as an arriving immigrant without a valid entry document under § 1182(a)(7). Torres, 976 F.3d at 931. However, the court ultimately found that the BIA properly concluded that the noncitizen was ineligible for relief in form of cancellation of removal because she failed to carry her burden of establishing ten years of continuous presence in the United States. Id.
Two district courts within the Ninth Circuit have held that the clear and unambiguous holding of Torres means that an expedited removal proceeding where inadmissibility is based Section 1182(a)(7) is only permissible for noncitizens who have applied for admission into the United States at a port of entry. See United States v. Mayren, 591 F.Supp.3d 692 (C.D. Cal. 2022); United States v. Carrillo-Moreno, 2023 WL 3060966 (D. Ariz. Apr. 24, 2023). Both Mayren and Carrillo-Moreno involved the same factual situation as in the case at hand: noncitizens entered the United States on foot through the southern border and were apprehended by the Border Patrol within the interior of the United States. Both noncitizens were put into expedited removal proceedings and found to be inadmissible under Section 1182(a)(7). As a result, the noncitizens were ordered removed from the United States. After their removal, both defendants returned to the United States and were charged with the felony offense of Reentry of a Removed Alien. Both defendants filed a motion to dismiss their indictments arguing that the expedited removal orders were fundamentally unfair, and as a result, violated their due process rights. As discussed below, both district courts agreed and dismissed the indictments.
In Mayren, the district court rejected the government's argument that Torres narrowly applies to immigration circumstances in the CNMI. 591 F.Supp.3d at 697. That court focused on footnote 13 in Torres, where the Ninth Circuit noted that “no case has held that 1225(b)(1) allows an immigration officer to apply 1182(a)(7) to noncitizens who are physically but unlawfully present in the United States.” Id. The court also rejected the government's reliance on Thuraissigiam “because there the Supreme Court in dicta merely ‘briefly outlin[ed] the provisions of immigration,'” and its ‘holding did not concern the scope of 8 U.S.C. § 1182(a)(7).” Id. at 698 (quoting Thuraissigiam, 140 S.Ct. at 1964). By contrast, “Torres unequivocally states that under 1182(a)(7), ‘at the time of application for admission” refers to the moment of applying for entry at the border, and it applies ‘when a noncitizen seeks permission to physically enter United States territory, regardless of whether the noncitizen is seeking entry from outside the country or inside the country at a port of entry.'” Id.
The court then turned to whether the defendant was prejudiced by his unlawful expedited removal under Section 1182(a)(7). Mayren, 591 F.Supp.3d at 699. The defendant argued that he was prejudiced because (1) he was not removable under Section 1182(a)(7); (2) as a result, the Border Patrol agent who conducted the expedited removal lacked the authority to order the defendant removed; and (3) he could show that he had a plausible claim to voluntary departure if he had been placed before an immigration judge. Id. The Court agreed with the defendant that he was prejudiced by the removal order “on the grounds that he was not removable as charged under 1182(a)(7).” Id. The court reasoned that “[t]he Ninth Circuit has repeatedly asserted that a defendant is prejudiced where he was ‘removed when he should not have been.'” Id. (quoting United States v. Aguilera-Rios, 769 F.3d 626, 630, 636 (9th Cir. 2014)).
In Carrillo-Moreno, the district court first noted that “ Torres is binding precedent, which this Court cannot ignore.” Carrillo-Moreno, 2023 WL 3060966 at *6. Like in Mayren, the Carrillo-Moreno court pointed to footnote 13 in Torres where the Ninth Circuit noted the absence of any case law holding that Section 1125(b)(1) allows an immigration officer to apply Section 1182(a)(7) to noncitizens who are physically but unlawfully present in the United States. Id. The court agreed “with the Mayren court that Torres's holding is clear and applicable here” because “there is no basis upon which to find that [the defendant] lacked the requisite entry documents ‘at the time of his application for admission[,]'” which is required for expedited removal under Section 1182(a)(7). Id. The district court concluded that nothing in the Torres court's decision limits the application or scope of its holding to a person who has legal status prior to entering removal proceedings.” Id. Therefore, the court declined to “read such a limitation into the law.” Id.
The court noted that “[a]s a policy, this reasoning makes sense” because “[n]oncitizens who are physically, even if unlawfully, present in the United States, have access to multiple forms of immigration relief, such as voluntary departure and cancellation of removal, which require determination by an immigration judge, not simply an immigration officer as set forth in 1225(b)(1).” Carrillo-Moreno, 2023 WL 3060966 at *6. As a result, the court concluded that the defendant's expedited removal order violated his “due process rights and was prejudicial because there was no basis on which to determine that [he] was inadmissible under 8 U.S.C. § 1182(a)(7).” Id.
This Court first notes that it is not bound by Carrillo-Moreno. Based on that court's interpretation of Torres, the Ninth Circuit essentially gutted the expedited removal statute by restricting its applicability to aliens applying for entry into the United States at a port of entry. That is an odd result given that Torres did not involve an expedited removal proceeding. However, as Mayren and Carrillo-Moreno conclude, the holding of Torres is “clear” and “unequivocal” with regard to applicability of Section 1182(a)(7). And the Torres court did not limit its holding to the unique facts of that case.
The Court also notes that in holding that Section 1182(a)(7) does not apply to noncitizens unlawfully present in the United States, Torres seems to have created the same anomaly that existed prior to the passage of IIRIRA. As discussed above, the Ninth Circuit court reasoned that the passage of IIRIRA did away with the anomaly that immigrants who were unlawfully present in the United States had greater procedural and substantive rights afforded in deportation proceedings, while aliens who present themselves at a port of entry were more subject to the more summary exclusion proceedings. However, this same anomaly exists if only arriving aliens are removable under Section 1182(a)(7). The effect is that arriving aliens, who are removable under Section 1182(a)(7), are subject to expedited removal proceedings which, much like the exclusion proceedings pre-IIRIRA, afford little procedural or substantive rights. By contrast, an alien unlawfully present in the interior of the United States is entitled to a removal proceedinge.g., a hearing before an immigration judge - which affords the alien more rights. All that said, as discussed in text, the sweeping holding of Torres is clear and unequivocal.
The Ninth Circuit will soon get to make clear the breadth of its holding in Torres. See United States v. Gambino-Ruiz, Nos. 21-50303 & 21-50305 (9th Cir.). There is an appeal pending before that court involving a district court's denial of a motion to dismiss an indictment based on the same ground raised by the defendant here. Govt.'s Suppl. Response (Doc. 69) at 2 (citing Hr'g Tr. 3/24/2021 at 13:12-24, United States v. Gambino-Ruiz, No. 20-CR-3124-LAB (S.D. Cal. Apr. 26, 2021), ECF No. 60). The district court in the Southern District of California did not issue a written order; rather, the court summarily denied the motion based on Thuraissigiam. See Id. The Ninth Circuit held oral argument on November 15, 2023. Id.
As a result, this Court also holds that for purposes of Section 1182(a)(7), “at the time of application for admission” refers to the moment of applying for entry at the border. Therefore, Section 1225(b)(1) does not allow an immigration officer to apply Section 1182(a)(7) to noncitizens like the defendant who are physically but unlawfully present in the interior of the United States. Because there is no basis upon which to find that the defendant lacked the requisite entry documents at the time of his application for admission, his expedited removal based on Section 1182(a)(7) was invalid and violated his due process rights. ...
D. The Defendant was Prejudiced by his Invalid Removal.
The government argues that even if Torres compels the result reached in Carrillo-Moreno and Mayren, the defendant's motion to dismiss should be denied because he cannot show that he was prejudiced by his invalid removal. The Court disagrees for the reasons discussed below.
In Mayren, the court concluded that the defendant was prejudiced because he was “removed when he should not have been,” even though the defendant would have been otherwise removable. Mayren, 591 F.Supp.3d at 699. The court in Carrillo-Moreno reached the same conclusion. Specifically, that court reasoned that “[n]oncitizens who are physically, even if unlawfully, present in the United States, have access to multiple forms of immigration relief, such as voluntary departure and cancellation of removal, which require determination by an immigration judge, not simply an immigration officer as set forth in § 1225(b)(1).” Carrillo-Moreno, 2023 WL 306096 at *6.
In the case at hand, the defendant argues that two possible forms of relief were available to him to avoid a removal order: withdrawal of his application for admission or voluntary departure. The testimony of Agent Lawrence and Agent King make clear that a “withdrawal of application,” even though often used interchangeably with a “voluntary departure,” is a form of relief specific to aliens seeking entry into the United States at a port of entry. That is obviously not the situation here.
With respect to a voluntary departure, Agent Lawrence testified that in 2013, a voluntary departure was not an option for a noncitizen like the defendant - a healthy Mexican male traveling alone who did not raise a fear claim or humanitarian issues. At that time, the Border Patrol was following a directive to issue a consequence to all unlawful entrants. A voluntary departure was not an authorized or appropriate consequence absent extraordinary circumstances that were not present here.
To be clear, however, Agent Lawrence only testified about the unavailability of a voluntary departure as a form of relief under Border Patrol directives. Agent Lawrence did not (and presumably could not) testify about whether a voluntary departure would have been an available form of relief offered by other immigration officials, such as an immigration judge.
The defendant argues that he should have been processed for removal under 8 U.S.C. §§ 1229 and 1229a, which would have provided him with certain rights, including a Notice to Appear documenting the grounds for his removal, his right to contest his removal, his right to counsel, his right to have a hearing before an immigration judge, and the right to appeal his removal. Additionally, and importantly, a voluntary departure is a form of relief from removal that is available for proceedings initiated under Sections 1229 and 1229a. Specifically, 8 U.S.C. § 1229c(a)(1) provides: “The Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense under this subsection, in lieu of being subject to proceedings under Section 1229a of this title or prior to the completion of such proceedings, if the alien is not deportable under Section 1227(a)(2)(A)(iii) [for an aggravated felony conviction] or Section 1227(a)(4)(B) [for terrorist activities] of this title.”
The Court asked the government several times if there were other types of removal proceedings besides expedited removal proceedings and proceedings before an immigration judge. For instance, a removal proceeding that affords more due process rights than an expedited removal proceeding but less rights than a proceeding before an immigration judge. The government has not identified any other type of removal proceeding. Given the absence of any evidence to the contrary, the Court is left to conclude that the defendant is correct that he should have been put into removal proceedings under Sections 1229 and 1229a and appeared before an immigration judge.
Because neither prohibition for a voluntary departure applied to the defendant, he was eligible for a voluntary departure in removal proceedings initiated pursuant to Sections 1229 and 1229a. In fact, the defendant had no criminal or immigration history prior to his 2013 apprehension and removal. Those facts could have weighed heavily in favor of a request for voluntary departure in a removal proceeding before an immigration judge. Thus, it was “plausible” that a removal order would not have resulted if a valid removal proceeding had been utilized. As a result, the defendant has demonstrated that he was prejudiced by his invalid expedited removal. For that reason, the Court recommends that the Motion to Dismiss the indictment be granted.
RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order GRANTING Motion to Dismiss Indictment Pursuant to 8 U.S.C. 1326(d) (Doc. 21).
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CR-22-02109-TUC-SHR.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.