United States v. Hernandez-Agustin

UNITED STATES OF AMERICA, Plaintiff, v. LEOBARDO HERNANDEZ-AGUSTIN, Defendant.

No. 21-cr-1886KG

United States District Court, D. New Mexico

March 31, 2022

MEMORANDUM OPINION

This matter is before the Court on Defendant Leobardo Hernandez-Agustin's Amended Motion to Dismiss the Indictment with Prejudice. (Doc. 24). This Memorandum Opinion follows a separate Order in which this Court denied the Motion. (Doc. 45).

Mr Hernandez-Agustin is charged with felony reentry of a removed alien. (Doc. 12). In his Motion to Dismiss, Mr Hernandez-Agustin makes a collateral attack on his previous deportation, arguing that it was fundamentally unfair because he does not speak Spanish and therefore could not understand it, was not properly notified of his rights, did not properly waive those rights, and was deprived of the opportunity for judicial review and to exhaust administrative remedy. See generally (Doc. 24). By law, if the predicate removal was invalid, the Government cannot prove a necessary element of felony reentry-namely that the alien reentered after a prior removal. E.g., United States v Palomar-Santiago, 141 S.Ct. 1615, 1619 (2021). Specifically, the question presented by the Motion is whether Mr. Hernandez-Agustin is a monolingual Indigenous Mixteco speaker or whether he understands Spanish. The Court finds based on the weight of the credible evidence, that Mr. Hernandez-Agustin comprehended Spanish sufficiently to understand his previous removal and to knowingly and intelligently waive his rights. Thus, the Motion is denied.

I. Background

A. Procedural Background

The United States timely responded to the Motion to Dismiss. (Doc. 22). The Court conducted in-person hearings at which it heard evidence on February 24, 2022, and March 4, 2022. (Docs. 37 and 44). Assistant United States Attorney Matthew Ramirez represented the Government. Assistant Federal Public Defender Danielle Phillips represented Mr. Hernandez-Agustin, who was present.

The following witnesses testified on behalf of the United States:

■ Homeland Security Investigations Special Agent Sergio Guerra testified about interviewing Mr. Hernandez-Agustin during his predicate arrest, in Amarillo, Texas, in October 2017;

■ Immigration and Customs Enforcement Deportation Officer Lorenzo Lazcano testified about conducting Administrative Removal Interviews with Mr. Hernandez-Agustin in May and June 2018 as part of his predicate administrative removal procedure near Lubbock, Texas;

■ United States Border Patrol Agent Michael Schottmuller testified about encountering and arresting Mr. Hernandez-Agustin near Lordsburg, New Mexico on December 4, 2021;

■ United States Border Patrol Agent Jose Ortega testified about intaking Mr. Hernandez-Agustin at the Lordsburg Border Patrol Station on December 4, 2021; and ■ United States Border Patrol Agent Arturo Munoz testified about intaking Mr. Hernandez-Agustin at the Lordsburg Border Patrol Station on December 4, 2021.

And the following witnesses testified on behalf of Ms. Hernandez-Agustin:

■ Arcenio Lopez, Executive Director of the Mixteca Indigena Community Organizing Project in Oxnard, California, testified to his experience interviewing Mr. Hernandez-Agustin; and

■ Mr. Hernandez-Agustin testified on his own behalf.

The Court notes that it twice declined to certify Arcenio Lopez as an expert in this case, first orally at the February 24 hearing, and second in an order denying Mr. Hernandez-Agustin's subsequent written Motion to Appoint Expert Arcenio Lopez. See (Docs. 37, 38, 39). The Court first excluded Mr. Lopez entirely, reasoning that testimony about Mixteco language and culture generally was irrelevant, and to the extent it might be relevant, it was not probative of Mr. Hernandez-Agustin's Spanish language proficiency or credibility. (Doc. 37); (Doc. 39) at 2. The Court next ruled that Mr. Lopez may not testify as an expert in language proficiency for lack of qualifications and reliable methods. (Doc. 39) at 4. The Court nonetheless concluded he may testify as a lay witness to the extent he developed personal perceptions of Mr. Hernandez-Agustin's language skills based on his interactions with the Defendant. Id. Even so, the Court reiterated that testimony by Mr. Lopez about Mixteco culture was excluded. Id. at 5. For these reasons, the Court considers Mr. Lopez's testimony only to the extent it relates to his personal perceptions of his conversations with Mr. Hernandez-Agustin.

B. Legal Background

A prior removal order enjoys a presumption of regularity which a defendant must overcome by meeting 8 U.S.C. § 1326(d)'s three requirements. United States v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010). To bring collateral attacks against predicate removal orders, defendants must demonstrate that (1) they "exhausted any administrative remedies that may have been available to seek relief against the order," (2) the removal proceedings "improperly deprived [them] of the opportunity for judicial review," and (3) "entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). The defendant has the burden of making § 1326(d)'s three-part showing by a preponderance of the evidence. United States v. Gonzalez-Fierro, 949 F.3d 512, 521 n.7 (10th Cir. 2020).

Generally, a defendant may knowingly waive their rights in a removal proceeding, and any such waiver is dispositive of the required exhaustion of administrative remedies. See, e.g., United States v. Chavez-Alonso, 431 F.3d 726, 728 (10th Cir. 2005) ("An alien who knowingly waives the right to appeal an immigration judge's order of deportation fails to exhaust administrative remedies under § 1326(d)(1).").

Mr. Hernandez-Agustin argues essentially that his lack of Spanish-language proficiency meant that he did not understand his first removal and therefore he did not knowingly waive any of his rights related to that removal, including his right to administrative review and right to counsel. (Doc. 24) at 4. Specifically, his argument is that he (1) could not have knowingly waived his right to administrative remedies (and therefore, that his failure to exhaust should be excused), and (2) was deprived of his right to judicial review, which (3) rendered his removal fundamentally unfair. See (Doc. 24) at 13-21.

The Government argues the exact opposite, that Mr. Hernandez-Agustin's claim that he did not speak Spanish proficiently in 2018 lacks credibility and that he validly waived his rights to administrative remedies and judicial review. See generally (Doc. 22). The crux of the Motion, therefore, is the factual question whether Mr. Hernandez-Agustin understood Spanish sufficiently in 2018 to understand his removal and waive his rights knowingly and voluntarily.

II. Findings of Fact

The Court, based on the witness testimony and the evidence submitted, finds that Mr. Hernandez-Agustin spoke and understood Spanish sufficiently to knowingly waive his rights during his 2018 administrative removal proceeding. The Court makes the following specific factual findings.

During a post-Miranda interview with Homeland Security Investigations Special Agent Sergio Guerra in October 2017 in Amarillo, Texas, Mr. Hernandez-Agustin answered questions in Spanish, using extended answers to reply to open-ended questions. Transcript of February 24, 2022, Motion Hearing at 39:7-17; 41:20-42:1; 43:22-4:1.' Mr. Hernandez-Agustin used full sentences and both present and past tenses in Spanish. Feb. 24 Tr. at 41:10-13. Mr. Hernandez-Agustin acknowledged his Miranda rights in Spanish, at times asking for clarification in Spanish and re-stating his rights in his own words in Spanish. Feb. 24 Tr. at 38:4-39:4. Mr. Hernandez-Agustin waived his Miranda rights orally in Spanish. Feb. 24 Tr. 39:3-4^[1]. Though Mr. Hernandez-Agustin expressed that he did not feel proficient in Spanish and that Mixteco was his first language, Feb. 24 Tr. at 45:10-13; Def s Exh. 1, he never requested a Mixteco interpreter nor reported that he could not understand his Spanish conversations with government agents, Feb. 24 Tr. 42:2-15. In the end, Agent Guerra had "no doubts" that Mr. Hernandez-Agustin spoke Spanish. Feb. 24 Tr. at 51:4-6.

In May and June 2018 Immigration and Customs Enforcement Deportation Officer Lorenzo Lazcano conducted administrative removal interviews with Mr. Hernandez-Agustin. Officer Lazcano worked out of Lubbock, Texas, and conducted the interviews at Dalby Correctional Facility in Post, Texas. Feb. 24 Tr. at 58:12; Government's Exh. 2. The interviews were conducted in Spanish after Officer Lazcano asked Mr. Hernandez-Agustin the best language with which to proceed. Feb. 24 Tr. at 60:1-7. According to records, Mr. Hernandez-Agustin answered every question in Spanish. Feb. 24 Tr. at 60:1-7. Those questions required more than simple yes-or-no answers and included things like date of birth, where he was from, whether he had been removed previously, pending applications, his mother's and father's names, etc. Feb. 24 Tr. at 86:20-87:1. Mr. Hernandez-Agustin did not report that he could not understand the interaction. Feb. 24 Tr. at 68:24-69:1. Nor did he request an interpreter. Feb. 24 at 65:10-15; 84:2-11. Officer Lazcano determined, based on their conversation, that Mr. Hernandez-Agustin "spoke proficient Spanish." Feb. 24 Tr. at 86:8-11.

Mr Hernandez-Agustin initialed every page of and signed his 1-877, "Record of Sworn Statement," form. Feb. 24 Tr. at 61:23; 62:12-13; Government's Exh. 1. Mr. Hernandez-Agustin also signed his 1-851, which was explained to him in Spanish, indicating that he admitted the allegations and that he was not contesting or requesting withholding of removal. Feb. 24 Tr. at 67:11-17; Government's Exh. 2. Mr. Lazcano also gave Mr. Hernandez-Agustin a copy of his...