United States v. Carrillo-Moreno

670 F.Supp.3d 921

UNITED STATES of America, Plaintiff, v. Jorge Luis CARRILLO-MORENO, Defendant.

No. CR-22-00791-001-TUC-RM (DTF)

United States District Court, D. Arizona

Signed April 24, 2023

Micah Schmit, Assistant U.S. Attorney, U.S. Attorneys Office, Tucson, AZ, for Plaintiff.

ORDER

Rosemary Márquez, United States District Judge

On October 28, 2022, Magistrate Judge D. Thomas Ferraro issued a Report and Recommendation (R&R) (Doc. 34) recommending that this Court deny Defendant's Motion to Dismiss Indictment. (Doc. 34.) On November 10, Defendant filed an Objection (Doc. 35) and on December 19, 2022, after an extension of time, the Government responded to the Objection (Doc. 42). For the following reasons, the Court will overrule the R&R and grant dismissal of the Indictment.

I. Background¹

In 2012, Defendant entered the United States on foot through the southern border. He was found over fifty miles from the international border. In an expedited removal proceeding, Border Patrol Agent Joseph Callies determined Defendant was inadmissible pursuant to Section 212² (a)(7)(A)(i)(I) of the Immigration and Nationality Act ("INA"). On October 1, 2012, Defendant was removed to Mexico through Douglas, Arizona. Between May 2015 and January 2021, Defendant was removed from the United States multiple times.³ On March 21, 2022, Border Patrol agents apprehended Defendant, along with a group of other individuals in Arizona close to the international border. Defendant admitted he had recently crossed the border illegally. On April 20, 2022, the Grand Jury returned a one-count indictment alleging Defendant reentered the United States without permission in violation of 8 U.S.C. § 1326(a).

Defendant filed a Motion to Dismiss Indictment. (Doc. 12.) Defendant argues that the Indictment should be dismissed based on a collateral attack of his 2012 expedited removal order. (Id. at 3-4.) Defendant argues that he was not inadmissible under 8 U.S.C. § 1182(a)(7),⁴ as alleged in the expedited removal notice and order, because he did not make an "application for admission" at the border in 2012 but rather entered the United States illegally while attempting to avoid detection. (Id. at 8.) Defendant argues that he should have been processed for removal under 8 U.S.C. § 1229 and § 1229a, which would have provided him with notice of 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 a hearing before an immigration judge, and the right to appeal his removal. (Id. at 8-9.) Defendant argues that the failure to place him in removal proceedings, rather than expedited removal proceedings, violated his right to due process, and therefore the subsequent re-instatements of the 2012 removal order, including the October 8, 2021 removal that is the subject of the Indictment, violate due process. (Id. at 9.) Defendant further argues that his placement in expedited removal proceedings prejudiced him because he would have qualified for voluntary departure had he been removed under 8 U.S.C. § 1229a. (Id.) Defendant argues, in sum, that the expedited removal order violated his due process rights, which prejudiced him and was fundamentally unfair.

II. Standard of Review

A district judge must "make a de novo determination of those portions" of a magistrate judge's "report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b)(3) ("The district judge must consider de novo any objection to the magistrate judge's recommendation"). Failure to object to the findings and recommendations of the magistrate judge "waives a party's right to review." Fed. R. Crim. P. 59(b)(2).

III. Report and Recommendation

Magistrate Judge Ferraro's R&R recommends denying the Motion to Dismiss Indictment. (Doc. 34.) The R&R sets forth the relevant standard for a defendant collaterally attacking a removal order under § 1326(d) as follows: (1) the defendant exhausted his administrative remedies; (2) the removal proceedings unfairly denied him judicial review; and (3) the entry of the removal order was fundamentally unfair. (Id. at 2-3); see United States v. Vega-Ortiz, 822 F.3d 1031, 1034 (9th Cir. 2016). Fundamental unfairness has two components: (1) a violation of due process rights from defects in the removal proceeding and (2) actual prejudice. Id.

The R&R finds that the expedited removal proceeding provided no available administrative remedies, and that the Government has effectively conceded the first prong of the Vega-Ortiz standard. (Id. at 3.) The R&R further finds the Government's argument as to the second prong, that Defendant could have obtained judicial review following the 2012 removal order, unavailing based on applicable case law. (Id. at 3-4) Specifically, the R&R concludes that Defendant could not have challenged his expedited removal via subsequent criminal or removal proceedings, or during reinstatement of the 2012 removal. (Id.) Nor could Defendant have challenged it through a habeas corpus petition, as habeas review of expedited removal orders is very limited. (Id. at 4.) Accordingly, the R&R finds that the expedited removal proceeding deprived Defendant of judicial review. (Id.)

The R&R's analysis focuses on the third prong, fundamental unfairness, which is also the subject of Defendant's argument on objection. (Id. at 4-8.) The R&R rejects Defendant's argument that he should not have been placed in an expedited removal proceeding because no "application for admission" occurred pursuant to § 1182(a)(7). (Id.) The R&R finds that, while Defendant was an "applicant for admission" pursuant to 8 U.S.C. § 1225(a)(1), it is less clear whether he made an "application for admission" in 2012 within the meaning of § 1182(a)(7)(A). (Id.) Analyzing precedent from the Ninth Circuit Court of Appeals in Torres v. Barr, 976 F.3d 918 (9th Cir. 2020) and from the Supreme Court in Department of Homeland Security v. Thuraissigiam, — U.S. —, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020), the R&R concludes that the reasoning of Thuraissigiam is more applicable and persuasive than that of Torres. (Id.) Specifically, the R&R finds that, although the Torres court found the non-citizen not removable under § 1182(a)(7) due to not having submitted an "application for admission" at the time when she "submit[ted] an application to physically enter into the United States," the specific facts of that case call for it to be narrowly read. (Id.) On the other hand, the R&R found persuasive the language in Thuraissigiam stating that "an alien who arrives at a port of entry . . . must apply for admission" and "an alien like respondent who is caught trying to enter at some other spot is treated the same way." (Id.); see Thuraissigiam, 140 S. Ct. at 1964. Thus, the R&R concludes that a non-citizen need not arrive at a port of entry to be treated as applying for admission within the meaning of § 1182(a)(7)(A). The R&R further finds that policy considerations and rules of statutory construction support its analysis. (Id.) Specifically, the R&R finds that non-citizens attempting to enter outside the port of entry should be considered to have applied for admission within the meaning of § 1182(a)(7)(A) because, if they were not subject to expedited removal, the immigration system would be overwhelmed. (Id. at 8.) The R&R finds that Defendant's proposed reading of the statute would render the portion of § 1225(b)(1)(A) stating that it applies to aliens who have not shown that they have been present in the United States continuously for two years prior to the determination of inadmissibility, meaningless. (Id.) The R&R does not discuss the case of United States v. Mayren, 591 F. Supp. 3d 692, 693 (C.D. Cal. 2022), upon which Defendant relies.

Defendant objects to the R&R's finding that his removal order was not fundamentally unfair. (Doc. 35.) Defendant argues that a removal on illegal grounds is sufficient to show a due process violation and prejudice even if the noncitizen was otherwise removable. (Id. at 3-4.) Defendant further argues that, under Torres, the phrase "at the time of application for admission" refers to the "particular point in time when a noncitizen submits an application to physically enter the United States" and therefore individuals who are physically present in the United States and have not filed an application for entry at the border are not considered applicants for admission. (Id. at 4-5.); 976 F.3d at 924. Defendant argues that his 2012 removal was accordingly invalid and "removal on illegitimate grounds is enough to show prejudice," even if a non-citizen was otherwise removable. (Id. at 7); see United States v. Ochoa-Oregel, 904 F.3d 682, 686 (9th Cir. 2018). Defendant contends that, had he been placed in removal proceedings under 8 U.S.C. § 1229a, he likely would have qualified for and been granted voluntary departure. (Id. at 8-9.)⁵ Defendant reiterates his argument regarding footnote 13 of the Torres decision, emphasizing the Court's rejection of the Government's argument that § 1225(b)(1)(A)(i) authorizes expedited removal of non-citizens who are present in the United States but not physically present at the border. (Id. at 9-10.) Defendant relies on the language of footnote 13 stating 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. at 10.)

The Government's response likewise focuses on the third prong of fundamental unfairness and prejudice. (Doc. 42.) The Government contends that the Torres decision is distinguishable from the instant case because Ms. Torres had been legally present in the United States⁶ for years before her removal was initiated. (Id. at 2.) Thus, the Government argues, the Torres court's conclusion that Ms. Torres's due process rights had been violated was...