United States v. Gonzalez

UNITED STATES OF AMERICA, Plaintiff, v. JOAQUIN CARMONA GONZALEZ, Defendant.

19-CR-0530 (JS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

April 5, 2021

MEMORANDUM & ORDER

APPEARANCES

For Plaintiff:

Charles N. Rose, Esq.

Assistant U.S. Attorney

United States Attorney, E.D.N.Y.

610 Federal Plaza

Central Islip, New York 11722

For Defendant:

Christopher Worth, Esq.

429 Montauk Highway

P.O. Box 1115

East Quogue, New York 11942

Mark I. Cohen, Esq.

Cohen Frankel & Ruggiero, LLP

20 Vesey Street, Suite 1200

New York, New York 10007

SEYBERT, District Judge:

Defendant Joaquin Carmona Gonzalez ("Defendant") seeks to dismiss the Government's one-count indictment alleging Defendant illegally reentered the Country in violation of 8 U.S.C. § 1326(a) & (b)(1) (hereafter, the "Dismissal Motion"). (See ECF No. 21; see also Supp. Memo., ECF No. 21-1; Supp. Exs. A-z, ECF Nos. 21-3 through 21-28, respectively; Reply, ECF No. 34.) The Government opposes the Dismissal Motion, arguing primarily that Defendant's collateral attack of the underlying removal order does not establish fundamental unfairness in the process of his removal. (See Opp'n, ECF No. 31; see also Supp. Exs. A-O,¹ ECF No. 32 (under seal).) For the reasons stated herein, the Dismissal Motion is DENIED.

BACKGROUND

Defendant is a Mexican citizen. (See Ex. C, ECF No. 21-5.) He entered the United States in February 2002 on a B1/B2 tourist visa. (See Ex. G-B, ECF No. 32, p.2.) On April 12, 2003, Defendant was arrested in Sag Harbor, New York and charged with, among other things, driving while intoxicated, pursuant to NY VTL § 1192(3), a Class U Misdemeanor. On September 11, 2003, he pled guilty to driving while ability impaired by the consumption of alcohol, in violation of NY VTL § 1192(1), an infraction, and was sentenced to pay a fine. (See Ex. G-A, ECF No. 32, p.1.)

Despite no record of it, Defendant must have left the United States sometime after his 2003 guilty plea, since, on January 25, 2007, he reentered the Country from Mexico on a B1/B2 tourist visa (hereafter, the "January 2007 Reentry"). (See Ex. B., Form I-275 (Withdrawal of Application of Admission), ECF No.21-4.) The January 2007 Reentry was via a flight into Las Vegas, Nevada. (See id.)

Again, Defendant must have left the Country sometime after his January 2007 Reentry because, on March 26, 2007, he reentered the United States by a flight from Mexico into Houston, Texas (hereafter, the "March 26 Reentry"). (See id.; see also Ex. A, Gonzalez Aff., ECF No. 21-3, ¶9.) Initial screening at the Houston airport by Customs and Border Protection personnel ("CBP") indicated Defendant recently traveled to the United States, i.e., the January 2007 Reentry, which triggered Defendant's referral for a secondary interview. (See Ex. B; see also Ex. A, ¶¶10-11.)

During the secondary interview, despite initially being untruthful about his prior visit (e.g., its duration; where he stayed; whether he was employed in the United States during the visit), Defendant ultimately admitted having worked in New York during that visit. (See Exs. B & C.) Defendant, who admitted to speaking both Spanish and English, was then advised of his limited rights, which rights were provided to him in Spanish and English. (See Exs. A, C, & E, Record of Sworn Statement (Jurat) in Spanish, ECF No. 21-7.) In a sworn statement, Defendant admitted, inter alia: he was a Mexican citizen with no claim to United States citizenship; that between his January 2007 Reentry and the March 26 Reentry, he had lived on Long Island, and worked in landscaping and construction without documentation permitting him to do so;that the purpose of his March 26 Reentry was to look for work in the United States; he did not have a return ticket to Mexico; and, he did not wish to contact the Mexican Consulate, fear returning to Mexico, or have any questions. (See Ex. C; see also Ex. D, ECF No. 21-6.) Defendant also admitted to understanding his rights. (See Ex. C.) However, Defendant was not truthful in stating that he had never been arrested anywhere in the world. (See id. at 2.)

Thereafter, Defendant was determined to be inadmissible pursuant to § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act ("INA"), i.e., having worked without authorization on his last entry into the Country, and to be subject to expedited removal proceedings; accordingly, a Notice and Order of Expedited Removal, which contained the "Determination of Inadmissibility" and "Order of Removal," was executed and served upon Defendant. (See Ex. F, Form I-860, ECF No. 21-8 (including Certificate of Service).) In conjunction with the Notice and Order of Expedited Removal, Defendant was: given notice that he was "prohibited from entering, attempting to enter, or being in the United States for a period of 5 years from [March 26, 2007] as a consequence of . . . having been found inadmissible as an arriving alien . . . ;" instructed that if he wished to reenter the United States within the 5-year bar period, he was required to "obtain permission from the Attorney General to reapply for admission;" and, warned "that it is a crime for an alien who has been removed from the UnitedStates to enter, attempt to enter, or be found in the United States without the Attorney General's express consent," subjecting said alien "to prosecution for a felony" and potential imprisonment and/or a fine. (See Ex. G, Form I-296, ECF No. 21-9.) Defendant was removed from the United States on March 26, 2007 by a flight out of the Houston airport. (See id. at Verification of Removal (including Defendant's picture, right index fingerprint and signature).)

On March 30, 2007, Defendant was apprehended inside the United States near the Naco, Arizona Port of Entry (hereafter, the "March 30 Reentry"). (See Ex. K, Form I-213, ECF No. 21-13.) Lacking valid immigration documents permitting his presence in the Country, Defendant was taken to a Border Patrol Processing Facility for further processing. (See id.) Once there, initial processing highlighted Defendant's prior criminal and immigration records, thereby subjecting him to secondary processing. (See id.) During this secondary processing, Defendant was informed in both Spanish and English of his rights; thereafter, he agreed to speak with a Border Patrol agent under oath. (See Ex. M, Form I-867A, ECF No. 21-15; Ex. N, Form I-867B, ECF Nos. 21-16.) Defendant admitted he: was a Mexican citizen with no legal status in the United States; did not have a valid immigration visa permitting his travel to the Country; was apprehended approximately four kilometers inside the U.S. border about two hours after crossing the borderin the desert; entered the United States to find work, with plans to stay for approximately one year; did not fear returning to Mexico; and, would not be harmed if he was returned to Mexico. (See Ex. M.) Thereafter, Defendant was determined to be eligible for expedited removal since he was found to be a Mexican citizen within the United States, within 100 air miles of the U.S./Mexican border, but without having been properly admitted, i.e., lacking valid immigration documents, and to not have been physically present in the Country continuously for a 14-day period immediately prior to his March 30, 2007 encounter with Border Patrol agents. Accordingly, a Notice and Order of Expedited Removal was issued, which included a determination of inadmissibility. (See Ex. O, Form I-860, ECF No. 21-17, at Determination of Inadmissibility (finding Defendant inadmissible pursuant to INA § 212(a)(7)(A)(i)(I)); see also Ex. M.) In conjunction with the March 30, 2007 Notice and Order of Expedited Removal served upon Defendant (see Ex. O, Certificate of Service), a corresponding Notice to Alien Ordered Removed/Departure Verification Form was executed and provided to Defendant. (See Ex. P, Form I-296, ECF No. 21-18 (including Defendant's picture, right index fingerprint and signature).) Similar to the one issued on March 26, 2007, this Notice and Departure Verification Form: notified Defendant that he was "prohibited from entering, attempting to enter, or being in the United States" but for a period of 20 years becausehe had "been found inadmissible and . . . having been previously excluded, deported, or removed from the United States"; instructed Defendant that he was required to "obtain permission from the Attorney General to reapply for admission" if he wished reentry within the 20-year bar period; and, warned "that it is a crime for an alien who has been removed from the United States to enter, attempt to enter, or be found in the United States without the Attorney General's express consent," subjecting him to felony prosecution, potential imprisonment, and/or a fine. (See id.) Defendant was allowed to return to Mexico on foot. (See id. at Verification of Removal (including Defendant's picture, right index fingerprint and signature).)

Undeterred, on April 10, 2007, Defendant illegally reentered the United States, crossing the U.S./Mexico border near Santa Teresa, New Mexico, without valid immigration documentation. (See Ex. Q, Form I-213 (Report of Deportable/Inadmissible Alien), ECF No. 21-19.) That same day, he was arrested by a Border Patrol agent and taken to the Santa Teresa Border Patrol station for processing. (See id.) Initial processing of Defendant revealed, inter alia, his "previous Removal on 03/26/2007 through Houston, Texas." (Id.) Therefore, he was determined to be "removable as an alien who ha[d] illegally reentered the United States after having been previously removed or deported voluntarily while under an order of exclusion, deportation or removal and [was] thereforesubject to removal by reinstatement of the previous order." (Ex. S, Form I-871 (Notice of Intent/Decision to Reinstate Prior Order), ECF No. 21-21.) On April 11, 2007, Defendant was notified that the Attorney General intended to reinstate the March 26, 2007 Removal Order and that he would be removed pursuant to...