Opinion
CR-21-02235-001-TUC-CKJ (MSA)
05-17-2022
United States of America, Plaintiff, v. Fernando Valentino Osorio, Defendant.
REPORT AND RECOMMENDATION
HONORABLE MARIA S. AGUILERA, UNITED STATES MAGISTRATE JUDGE
Before the Court is Fernando Valentino Osorio's motion to dismiss the indictment. (Doc. 34.) The motion has been fully briefed, and an evidentiary hearing was held on April 18, 2022. (Docs. 35, 39, 52.) Oral argument was heard on May 4, 2022. (Doc. 61.) For the following reasons, the Court will recommend that the motion be denied.
Background
In May 2021, United States Border Patrol Agent Brandon Infiesto was patrolling the desert near the United States-Mexico border when he received notice that a suspected noncitizen, later identified as Osorio, had been spotted nearby. (E.H. 82-83.) Agent Infiesto proceeded to Osorio's last known location, where he observed footprints on and alongside an unmaintained dirt road. (E.H. 84.) After following the footprints for a short distance, Agent Infiesto observed Osorio duck behind a bush. (E.H. 84.) Agent Infiesto ordered Osorio to come out, and Osorio complied. (E.H. 86.) Osorio was wearing camouflage and carpet shoes, indicating, in Agent Infiesto's experience, that Osorio intended to conceal himself and avoid apprehension. (E.H. 86-87.)
“E.H.” refers to the transcript of the evidentiary hearing. “O.A.” refers to the transcript of oral argument.
Upon questioning, Osorio stated that he is a citizen of Guatemala, that he lacked documentation to be in the United States, and that he had crossed into the country from Mexico three days before. (E.H. 85-86, 89.) Approximately 15 to 20 minutes after his apprehension, Osorio mentioned that he intended to apply for asylum. (E.H. 92.) Osorio later spoke to an asylum officer, who determined that Osorio has a credible fear of torture if he were to be removed to Mexico. (E.H. 20-21.) Osorio was subsequently indicted with reentry of a removed alien in violation of 8 U.S.C. § 1326. (Doc. 14.)
Discussion
I. Evidentiary Issues.
The Court set an evidentiary hearing because the Government's response to the motion raised at least one material factual dispute, i.e., whether Osorio attempted to hide from Agent Infiesto. Osorio objected on the ground that the Government failed to establish a legal basis for an evidentiary hearing. This objection is without merit. A material factual dispute is a customary basis for holding an evidentiary hearing. See United States v. Mejia, 69 F.3d 309, 318 (9th Cir. 1995).
The objection was surprising, considering Osorio's reliance on his own declarations. Essentially, Osorio says that he can present his uncross-examined testimony as substantive evidence, but that the Government may not present evidence at all. This ignores that the criminal-justice system is adversarial.
Next, Osorio contends that, under Federal Rule of Evidence 1101(d)(3), “the evidentiary rules d[o] not apply to evidentiary hearings.” (E.H. 12, 15, 34.) This is incorrect. The Federal Rules of Evidence apply in “criminal cases and proceedings.” Fed.R.Evid. 1101(b). This is a criminal case, and an evidentiary hearing on a motion to dismiss the indictment is a criminal proceeding. See United States v. Brewer, 947 F.2d 404, 408 (9th Cir. 1991) (holding that the Federal Rules of Evidence apply to evidentiary hearings on motions to suppress). Osorio suggests that an evidentiary hearing is a “preliminary examination” to which the rules of evidence do not apply. Fed.R.Evid. 1101(d)(3). But the phrase “preliminary examination” does not mean “any pretrial proceeding.” It simply means the preliminary hearing under Federal Rule of Criminal Procedure 5.1. See Fed. R. Crim. P. 5.1 advisory committee notes to 2002 amendments (noting the change from “preliminary examination” to “preliminary hearing, ” and stating that hearsay is admissible in a preliminary hearing under Federal Rule of Evidence 1101(d)(3)'s “preliminary examination” exception); see also 18 U.S.C. § 3060 (using the phrase “preliminary examination” to refer to what is commonly known as a “preliminary hearing”).
The parties dispute the admissibility of Osorio's declarations. (Docs. 34-1, 60.) Osorio attempts to use the declarations to prove facts that supposedly require dismissal and to rebut testimony provided by Agent Infiesto. According to Osorio, the declarations are admissible under Federal Rule of Criminal Procedure 47(d), which provides that a pretrial motion may be “support[ed]” by “affidavit.” The Government contends that the declarations are inadmissible hearsay.
The Court agrees with the Government. While it was appropriate for Osorio to support his motion with a declaration, he overlooks that the purpose of a declaration is limited. See Fed. R. Crim. P. 47 advisory committee notes to 1944 adoption (clarifying that the affidavit provision “is not intended to permit ‘speaking motions' (e.g. motion to dismiss an indictment for insufficiency supported by affidavits)”). A declaration must be considered along with the briefing to determine whether there are factual disputes requiring an evidentiary hearing. Cohen v. United States, 378 F.2d 751, 761 (9th Cir. 1967). However, a declaration loses its utility after “factual issues are properly raised, ” because it is not “competent proof” in resolving those issues. Id. Here, the declarations were made outside of court and are offered to prove the matters asserted therein, and Osorio does not contend that they fall within a hearsay exception. Fed.R.Evid. 801(c), 802. Therefore, they are inadmissible.
For the same reason, the statement of Osorio's immigration attorney is also inadmissible. (Doc. 50.) The Court has not considered these materials for purposes of its recommendation.
II. The Motion to Dismiss.
Osorio contends that, as a refugee, he is immune from prosecution under United States and international law. He raises two primary arguments. Neither is persuasive.
Osorio's motion borrows extensively from a scholarly article. Evan J. Criddle, The Case Against Prosecuting Refugees, 115 Nw. U. L. Rev. 717 (2020).
His first argument (the domestic-law part) is based on the illegal-reentry statute. The statute exempts from criminal responsibility those who “establish that [they were] not required to obtain [the Attorney General's] consent” before entering the country. 8 U.S.C. § 1326(a)(2)(B). According to Osorio, “it is clear” from the asylum and withholding-of-removal statutes that, as a refugee, he “didn't need the Attorney General's consent to enter.” (O.A. 6.) This argument is meritless.
At the outset, Osorio fails to establish that he is a refugee. A “refugee” is a person who is unwilling or unable to return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Whether a noncitizen is a refugee, and thus entitled to asylum, is determined by the Attorney General, the Secretary of Homeland Security, or an authorized designee (e.g., an immigration judge). Id. § 1158(b)(1)(A); 8 C.F.R. § 208.14(a). Here, there is no evidence that an authorized official granted Osorio refugee status before he reentered the country.
Osorio argues that he is “clearly a refugee” because he has a pending claim for relief under the Convention Against Torture (CAT). (O.A. 5, 7.) This argument makes no sense. Even asylum applicants, who must prove that they are refugees, do not have refugee status before they are granted asylum. United States v. Aguilar, 883 F.2d 662, 678 (9th Cir. 1989) (rejecting implicitly the notion that “an alien is a refugee under the law before he is officially granted asylum”), superseded by statute on other grounds as recognized in United States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002). Unlike an asylum applicant, a CAT applicant need not prove that he is a refugee. Kamalthas v. I.N.S., 251 F.3d 1279, 1283 (9th Cir. 2001). Why, then, would a CAT applicant have refugee status while his application is pending? The obvious answer is that he would not.
As noted above, Osorio relies on the asylum and withholding-of-removal statutes to argue that refugees are authorized to enter in any manner. His reliance is misplaced. The asylum statute provides that any noncitizen can apply for asylum, even those who cross somewhere other than at a port of entry. 8 U.S.C. § 1158(a)(1). This does not mean that asylum applicants (let alone CAT applicants) may enter the country in whatever manner they choose. See Aguilar, 883 F.2d at 678 (“That Congress created a mechanism for those illegal aliens already inside this country to apply for political asylum hardly amounts to granting illegal aliens a license to cross our borders without being duly admitted.”). It simply means that even noncitizens who enter illegally can apply for asylum. Indeed, the Ninth Circuit has stated that “[e]ven a successful asylum applicant remains subject to criminal prosecution for previous immigration law violations, such as failing to have been duly admitted to the United States pursuant to [8 U.S.C. §] 1325.” Id.; see Ms. L. v. U.S. Immigr. & Customs Enf't, 302 F.Supp.3d 1149, 1164 (S.D. Cal. 2018) (distinguishing between an asylum applicant who appeared at a port of entry and one who “committed a crime by entering the United States illegally”).
The withholding-of-removal statute provides that withholding of removal is not subject to the Attorney General's discretion. 8 U.S.C. § 1231(b)(3)(A). This provision merely limits what the Attorney General may do with certain noncitizens who are already present in the country. As a matter of logic, it does not follow from that limitation that those noncitizens were authorized to enter without consent.
Changing tack, Osorio urges the Court to apply various rules of statutory interpretation to hold that § 1326(a) precludes the prosecution of refugees. (O.A. 6-7.) But the rules he attempts to invoke apply only when there is an ambiguity. See Serra v. Lappin, 600 F.3d 1191, 1199 (9th Cir. 2010) (the Charming Betsy canon); United States v. Shill, 740 F.3d 1347, 1354-55 (9th Cir. 2014) (the rule of lenity and doctrine of constitutional avoidance). There is no ambiguity in § 1326(a): It applies to “any alien” who was previously removed, except for those who receive consent to enter or “establish that [they were] not required to obtain . . . consent” to enter. Even Osorio agrees that this language is “very specific” and “clear on its face.” (O.A. 5.) Given this clarity, there is no reason to apply the foregoing rules. See United States v. Ramirez-Ortiz, 370 F.Supp.3d 1151, 1155 (S.D. Cal. 2019) (stating that “a plain reading of [the asylum and criminal] statutes suggests that they are not in conflict and that Congress chose not to grant immunity to asylum seekers who face criminal prosecution under 8 U.S.C. § 1325(a)(2)”).
Osorio fails to establish that he is a refugee under United States law. Moreover, the law is clear that even someone who obtains immigration relief can be prosecuted for a prior illegal entry. Therefore, Osorio's first argument is without merit.
Osorio's second argument (the international-law part) is that he is protected under the United Nations Convention Relating to the Status of Refugees (Convention) and United Nations Protocol Relating to the Status of Refugees (Protocol). (O.A. 7-9.) However, “[t]he Convention and Protocol are not self-executing, so their provisions do not carry the force of law in the United States.” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 757 (9th Cir. 2018) (citing Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009)). Osorio acknowledges this fact, but he contends that the Court must still apply the Convention. (O.A. 9-10.) Pointing out that, in Khan, the court used the Convention as a guide to interpret a provision of the Immigration and Nationality Act, Osorio asks: “If the Ninth Circuit Court did it, why can't this Court do it?” (O.A. 10.) This analogy is inapposite. Osorio urges the Court to apply the Convention itself. Analogizing to a case in which the Convention was used to interpret other law does nothing to advance that request. Given the foregoing, the Court declines Osorio's invitation to “revive [the Convention], to give it meaning, . . . to not circumvent this, [and] to not override this.” (O.A. 10.)
Osorio also questioned “[w]hy . . . we have to rely [on] precedent ....” (O.A. 10.) It should go without saying that, as a judge for an inferior court, the undersigned is not free to reject the Ninth Circuit's pronouncements.
As a final matter, even if the Convention applied, Osorio would not satisfy its requirements. The Convention requires that the refugee “present [himself] without delay to the authorities.” Convention art. 31, July 28, 1951, 189 U.N.T.S. 150, 174. Osorio has presented no admissible evidence showing that he did so. Furthermore, according to Agent Infiesto, Osorio stated that he had been in the United States for three days before his apprehension. (E.H. 89-90.) Agent Infiesto also testified that Osorio was wearing camouflage and carpet shoes, and that Osorio ducked behind a bush when Agent Infiesto approached. (E.H. 85-86.) These facts indicate that Osorio did not intend to apply for immigration relief unless he was apprehended. Thus, he did not present himself without delay. See United States v. Guevara-Medina, No. 18-mj-9443, 2018 WL 3970092, at *2 (S.D. Cal. Aug. 20, 2018) (finding that the defendant did not properly present himself because he attempted to hide in the brush); United States v. Rojas-Marcano, No. 18-130 PO, 2018 WL 1033200, at *2 (D.N.M. Feb. 22, 2018) (same).
Osorio urges the Court to reject Agent Infiesto's testimony as incredible. (O.A. 89, 29-30.) While Agent Infiesto did misremember certain details, the Court disagrees that all of his testimony was unreliable. Moreover, Agent Infiesto's credibility is immaterial because, as noted above, Osorio fails to identify admissible evidence showing that he presented himself appropriately. His argument, in effect, is that because the Government failed to disprove the presentation element, the element is satisfied. (O.A. 8-9.) This, of course, is not how the burden of proof operates.
Agent Infiesto's encounter with Osorio included an all-terrain vehicle accident. (E.H. 113.) That event, for which Agent Infiesto was reprimanded, would certainly make the encounter stand out from other, more innocuous encounters. (E.H. 112.)
In the abstract, Osorio raises interesting and thought-provoking issues. However, neither the law nor the facts support his request to dismiss or stay this matter. Therefore, IT IS RECOMMENDED that the motion to dismiss the indictment or, in the alternative, stay this matter (Doc. 34) be denied.
The parties shall have fourteen days from the date of service of this recommendation to file specific written objections with the district court. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b)(2). The parties shall have fourteen days to file responses to any objections. No replies may be filed absent prior authorization by the district court.