United States v. Caldera-Lazo

535 F.Supp.3d 1037

UNITED STATES of America, Plaintiff,

v.Noe CALDERA-LAZO, Defendant.

No. 1:19-CR-2031-SAB-1

United States District Court, E.D. Washington.

Signed April 26, 2021

Richard Cassidy Burson, Assistant US Attorney, U.S. Attorney's Office, Yakima, WA, for Plaintiff.

ORDER DISMISSING INDICTMENT

Stanley A. Bastian, Chief United States District Judge

Before the Court are Defendant's Motions to Dismiss, ECF Nos. 38, 39, 40, and 41. The Court heard oral argument on these motions on March 17, 2021. The United States was represented by Richard Burson. Defendant was represented by Paul Shelton. Defendant participated in the hearing by telephone.

Defendant requests that the Court find his two underlying removal orders void and therefore dismiss the Indictment against him. Alternatively, Defendant requests that the Court dismiss the Indictment on the grounds that the charging statute, 8 U.S.C. § 1326, is unconstitutional. The Court took the motions under advisement. Having reviewed the briefing, the parties’ oral arguments, and the relevant caselaw, the Court grants Defendant's Second and Third Motions to Dismiss and dismisses the Indictment in this case.

Facts

The following facts are pulled from the Indictment, ECF No. 1; Defendant's First, Second, and Third Motions to Dismiss, ECF Nos. 38, 39, 40; and the Government's Responses to Defendant's First and Third Motion to Dismiss, ECF Nos. 45, 47.

Defendant is charged with Illegal Reentry in violation of 8 U.S.C. § 1326. It is alleged that Defendant is a citizen and national of Mexico who has been denied admission, excluded, deported, or removed from the United States on two separate occasions: (1) on or about December 8, 2007, at San Ysidro, California and (2) on or about July 30, 2014, at Del Rio, Texas, and he was then found in the Eastern District of Washington without the express consent of the Attorney General or Secretary of the Department of Homeland Security to reapply for admission into the United States.

Defendant first came to the United States in 1991 with his mother and three siblings—Defendant's grandfather was a legal permanent resident in the United States. In October 1991, his grandfather submitted a petition for status for his mother, which listed Defendant and his siblings as accompanying minors.

In December 1999, Defendant's mother, along with his siblings, went to a local immigration office in Yakima to attempt to file a petition for status for all her children. But because Defendant's mother's first petition for status had not yet been resolved, the immigration agent issued Notices to Appear ("NTA") to place her and her children into removal proceedings. Defendant was 19 years old at the time. The December 1999 NTA ordered Defendant to appear for a removal hearing in Seattle, Washington a date and time "to be set."

On August 10, 2000, attorney Paul Edmondson entered a notice of appearance on behalf of Defendant and his family members. Four days later, Mr. Edmondson appeared with Defendant's mother and two sisters before an immigration judge in Seattle—Defendant and his older brother were not present. Only Defendant's mother's case had been set for a hearing that day, but Mr. Edmondson asked the judge to conduct a hearing on all five cases. At the hearing, Mr. Edmondson conceded both proper service and removability for all respondents but moved for an indefinite continuance to allow time for Defendant's mother's petition for status to be resolved. The immigration judge thus issued a written Notice of Hearing ("NOH"), setting the next hearing date as November 27, 2000 by telephone. The hearing was subsequently continued to January 29, 2001.

Defendant was present for the January 29, 2001 removal hearing in Seattle, along with his attorney, mother, and siblings. The immigration judge did not confirm with Defendant whether he had personally received the NTA, reviewed it with his counsel, or if he had any objection to Mr. Edmondson conceding his removability. Mr. Edmondson noted that Defendant was turning 21 years old in August 2001, which would age him out of his mother's petition, so the judge agreed to reset the removal hearing for May 24, 2001.

However, on March 20, 2001, approximately two months before Defendant's hearing was scheduled to take place, Defendant and his older brother were involved in a home invasion. Defendant and his brother were arrested and placed in custody at the county jail. On March 22, 2001, immigration authorities sent a detainer to the county jail, but it did not indicate that Defendant had ever been served with an NTA. In May 2001, while Defendant and his brother were in custody, the immigration judge administratively closed their removal proceedings, to which Mr. Edmonson did not object. In July 2001, Defendant pled guilty to Second-Degree Assault, First-Degree Burglary, and Taking a Vehicle without Permission. In September 2001, Defendant's mother and sisters were granted legal permanent resident status. On December 5, 2002, Defendant was sentenced to 90 months in prison.

In November 2007, one month prior to Defendant's scheduled release, the United States moved to re-calendar Defendant's removal hearing, which the immigration judge scheduled for December 6, 2007 in Seattle. There is no record that Defendant was served with an NTA, NOH, or any other document between the administrative closure of Defendant's removal proceedings in May 2001 and Defendant's December 2007 removal hearing. However, Defendant still appeared at his December 2007 removal hearing by video from Tacoma and was assisted by a Spanish interpreter for the hearing. The immigration judge told Defendant that the court had tried to get in touch with Mr. Edmondson because he had previously represented Defendant in his immigration proceedings, but that it had failed to get a hold of him. The immigration judge then said that it was his understanding that Defendant no longer wanted Mr. Edmondson to represent him, which Defendant confirmed. It is unclear when or how the immigration judge learned that Defendant no longer wanted Mr. Edmondson's assistance, as Defendant alleges that he had had no contact with Mr. Edmondson since being arrested in 2001. The immigration judge also asked Defendant if he had received his NTA and appeal rights form, which Defendant confirmed. Finally, the immigration judge reviewed the substantive allegations in the December 1999 NTA and Defendant admitted to them.

After asking Defendant to confirm his criminal record, the immigration judge told Defendant that he was not sure whether Defendant would be eligible for any relief from removal due to his prior convictions. The immigration judge then asked Defendant: "do you simply want to go back to Mexico, or do you want to try and look for some basis for relief?" Defendant alleges that there were then two mistranslations between him and the immigration judge. First, Defendant alleges that the interpreter translated the immigration judge's question to "do you simply want to go back to Mexico and [inaudible, but most likely "return"] somehow?" Second, Defendant alleges that that he responded "yes, I want to do it," but the interpreter relayed this as "yes, I want to be deported."

Defendant also alleges that he would have requested any available relief, including voluntary departure. But he alleges that the immigration judge did not explain that he was eligible for or could request voluntary departure. Additionally, the immigration judge did not explain that Defendant had a right to appeal the final removal decision.

The immigration judge issued a written removal order indicating that Defendant admitted his removability, did not make any applications for relief from removal, and waived his appeal rights. The written notice also informed Defendant that he was permanently barred from returning to the United States. Immigration authorities removed Defendant to Mexico on December 8, 2007.

There is no record of Defendant's reentry into the United States in the two years after his December 2007 removal. However, Defendant was seemingly present in the United States in 2009 and 2010, as Defendant has three criminal charges from this time.¹

On August 10, 2011, Defendant once again attempted to reenter the United States. He presented himself for admission at a pedestrian port of entry in El Paso, Texas, and presented a U.S. Passport Card with someone else's name. The Customs and Border Protection Officer suspected that the passport was not Defendant's, so the officer questioned Defendant and referred him to a secondary inspection. Defendant admitted that he was a Mexican citizen with no legal permission to enter the United States before asking for an attorney and stopping the questioning.

That same day, on August 10, 2011, the immigration officers prepared a "Withdrawal of Application for Admission/Consular Notification" form. ECF No. 40-6. This form noted that Defendant had been ordered removed by an immigration judge, but the section entitled "TO BE COMPLETED BY ALIEN WHEN APPLICATION FOR ADMISSION WITHDRAWN" is blank, suggesting that the immigration officers decided that Defendant was not a good candidate for withdrawal of application for admission. Id. at 1-2. The form also stated that "[Defendant] was processed for Expedited Removal with the concurrence of the shift supervisor .... A sworn statement was taken in which [Defendant] expressed no fear of his return to Mexico." Id. at 3. However, Defendant alleges that he did not give a sworn statement to immigration officers and there is no evidence of this sworn statement in the record. Finally, immigration officers prepared an Expedited Removal order, stating that Defendant was removable for falsely claiming U.S. citizenship to gain entry. ECF No. 40-7. But Defendant did not sign or initial this removal order.

Rather than immediately removing Defendant, the United States instead filed a criminal complaint in the Western District of Texas and subsequently...