United States v. Ochoa-Quinones

489 F.Supp.3d 1184

UNITED STATES of America, Plaintiff,

v.Benjamin OCHOA–QUINONES, Defendant.

NO: 2:19-CR-57-RMP-1

United States District Court, E.D. Washington.

Signed September 25, 2020

Matthew F. Duggan, U.S. Attorney's Office - SPO, Spokane, WA, for Plaintiff.

J Houston Goddard, Federal Defenders - SPO, Spokane, WA, for Defendant.

ORDER GRANTING DEFENDANT'S FIRST MOTION TO DISMISS THE INDICTMENT

ROSANNA MALOUF PETERSON, United States District Judge

BEFORE THE COURT is Defendant's First, Second, and Third Motion to Dismiss the Indictment charging Defendant, Benjamin Ochoa-Quinones, with being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326. ECF No. 17. A hearing was held on this matter on September 23, 2020. Mr. Ochoa was represented by Assistant Federal Defender Houston Goddard. The Government was represented by Assistant U.S. Attorney Michael J. Ellis. The Court has considered the parties' arguments, briefing, the record, and is fully informed.

BACKGROUND

Defendant, Mr. Benjamin Ochoa-Quinones, is a citizen and national of Mexico. ECF No. 1. He has lived in the United States since he was approximately five years old. ECF No. 48-1. Mr. Ochoa graduated from John C. Fremont High School in Los Angeles. Id. He is now married to a U.S. citizen with three children and runs a flooring business in Royal City, Washington. ECF No. 48 at 6.

In June of 2000, Mr. Ochoa was taken into custody by immigration officials. ECF No. 66-1. Mr. Ochoa was allegedly told he had to sign documents to be released. Id. He was granted a voluntary return to Mexico. ECF No. 66-2. Mr. Ochoa returned to the United States at an unknown date. ECF No. 66-1 at 2.

Mr. Ochoa was convicted of misdemeanor DUI in Los Angeles, California. ECF No. 48 at 7. While in custody for violating probation in January of 2009, he was again allegedly instructed to sign documents to be released. ECF No. 66-1 at 3. Immigration officials then allegedly took Mr. Ochoa to the border in San Diego, opened a gate, and had him walk across the border to Tijuana. Id. This is recorded as his second voluntary return to Mexico. ECF No. 66-2.

Eleven days later, Mr. Ochoa immediately attempted to renter the county at the San Ysidro, California Port of Entry. ECF No. 48-1 at 3. He allegedly stated that he was a United States Citizen by birth. ECF No. 48-3 at 2–3. Mr. Ochoa allegedly identified himself as his friend, Octavio Martinez, and gave officials Mr. Martinez's birthdate and place of birth. ECF Nos. 48-1 at 3; 48-4 at 3. Mr. Ochoa maintains that he did not present any of Mr. Martinez's documents to officials. ECF No. 48-1 at 3. Upon being referred to secondary inspection, it was allegedly discovered that Mr. Ochoa was not a U.S. citizen and he admitted to his true name. ECF No. 48-3 at 3. Mr. Ochoa was ordered removed via expedited removal proceedings on January 19, 2009. Id. That order is the predicate removal order in the present § 1326 prosecution.

Mr. Ochoa was allegedly found in the United States in Grant County, Washington in March of 2019. ECF No. 1. The Government charged him with being in the United States after removal, in violation of 8 U.S.C. § 1326. ECF No. 22. Mr. Ochoa seeks dismissal of the indictment for the following reasons:

1. The expedited removal proceedings in January of 2009, resulting in the predicate removal order for the indictment in this case, violated Mr. Ochoa's due process rights and caused him prejudice. 8 USC § 1326(d).

2. The indictment fails to state an offense because the requisite mens rea is not alleged. Fed. R. Crim. P. 12(b)(3)(B)(v).

3. Due process defects in Mr. Ochoa's previous voluntary removal "infected" the subsequent 2009 expedited removal, citing U.S. v. Ochoa-Oregel , 904 F.3d 682 (2018).

DISCUSSION

FIRST MOTION TO DISMISS—ECF No. 48

Mr. Ochoa argues that the expedited removal process in 2009 violated his due process rights and that he was prejudiced as a result. ECF No. 48 at 3. Mr. Ochoa alleges that he was neither notified of the charges against him, nor allowed to review his statement during the expedited removal process in 2009, which is evidenced by the absence of his signature on the reverse side of Form I-860. ECF No. 48-6.

To challenge an underlying removal order, a defendant must demonstrate (1) that he "exhausted any administrative remedies that may have been available to seek relief against the order"; (2) "the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review"; and (3) "the entry of the order was fundamental unfair." 8 U.S.C. § 1326(d) ; United States v. Ramos , 623 F.3d 672, 680 (9th Cir. 2010).

Expedited removal proceedings offer aliens neither administrative nor judicial review. To satisfy the third prong, Mr. Ochoa must show that the 2009 expedited removal proceeding was "fundamentally unfair." 8 U.S.C. § 1326(d). Specifically, Mr. Ochoa must establish that (1) the proceeding violated his due process rights and (2) that he suffered prejudice as a result. United States v. Barajas-Alvarado , 655 F.3d 1077, 1085 (9th Cir. 2011).

A. Due Process

Mr. Ochoa alleges various procedural errors were committed during his expedited removal process which violated due process. These purported errors include: (1) failure to inform the Mr. Ochoa of the charges against him; (2) failure to allow Mr. Ochoa to review and respond to the sworn statement; and (3) failure to have Mr. Ochoa sign the back of the I-860 Form. ECF No. 48 at 9–15.

The Government argues that in light of the Supreme Court's decision in Department of Homeland Security v. Thuraissigiam¹ aliens do not enjoy fundamental due process protections at the border; thus, due process is not automatically violated when procedure is not followed. See ––– U.S. ––––, 140 S. Ct. 1959, 207 L.Ed.2d 427 (2020). The Government contends Mr. Ochoa must show he suffered prejudice arising from the specified alleged failures in procedure. ECF No. 54 at 14, citing United States v. Raya-Vaca , 771 F.3d 1195, 1206 (9th Cir. 2014) (Regulatory violations which do not protect fundamental due process rights only implicate due process "when the failure to comply with the regulation causes prejudice.").

The Court does not find these arguments persuasive and declines to extend Thuraissigiam 's holding and its implications beyond civil habeas proceedings to the § 1326 context. The Court concurs with the Northern District of California's recent interpretation of the issue: "Congress has codified certain procedural rights in the expedited removal regulations and immigration statutes. Thus, Defendant had a right to procedural due process that conformed with the applicable statutes and regulations." United States v. Gonzales-Lopez , 2020 WL 5210923 *5 (N. D. Ca. Sept. 1, 2020). As the Northern District of California noted "violations of statutorily defined due process rights ... may result in a ‘fundamentally unfair’ removal order.... otherwise, relief under § 1326(d) would be rendered illusory." Id. at *6, n. 1 ; See also United States v. Guzman-Hernandez , 487 F.Supp.3d 985, 991, (E.D. Wash. Sept. 17, 2020) (extending Thuraissigiam to the context of § 1326 prosecutions would contravene the decision's limited scope).

Here, Mr. Ochoa had a right to expedited removal proceedings that complied with the applicable statutes and regulations. 8 C.F.R. § 235.3(b)(2)(i) ; See United States v. Garcia-Gonzalez , 791 F.3d 1175, 1177 (9th Cir. 2015) ("the regularity of [defendant's] expedited removal proceedings is judged solely by the procedures set forth [by statute and regulation]").

Mr. Ochoa alleges the proceedings in 2009 did not comply with 8 C.F.R. § 235.3(b)(2) in several ways, including that he was not provided notice of the charge. ECF No. 48-1; 48-4. The lack of notice and opportunity to respond is evidenced by the absence of Defendant's signature on the back of Form I-860. The relevant statute, 8 C.F.R. § 1235.3(b)(2)(i), expressly requires the defendant's signature. ("The examining immigration officer shall advise the alien of the charges against him or her on Form I-860 ... and the alien shall sign the reverse acknowledging receipt."). The Government does not contest that Defendant's signature is not on the reverse of Form I-860. Thus, there is an uncontested violation of due process. See ECF No. 48-6. See U.S. v. Hernandez-Rodriguez , 2019 WL 1508039 at *4 (E.D. Wash. 2019) (Finding violation of due process where there was affirmative evidence that defendant never signed Form I-860).

Therefore, Defendant's expedited removal in 2009 irrefutably violated those regulations and due process in at least one respect. The Court turns to the second prong regarding prejudice.

B. Prejudice

To establish prejudice, Mr. Ochoa must show that he had "plausible grounds for relief from deportation." United States v. Arce-Hernandez , 163 F.3d 559, 563 (9th Cir. 1998). "Where the relevant form of relief is discretionary, the alien must make a ‘plausible’ showing that the facts presented would cause the Attorney General to exercise discretion in his favor." Barajas–Alvarado , 655 F.3d at 1089. In determining the plausibility of relief, courts engage in a two-step inquiry. See United States v. Rojas-Pedroza , 716 F.3d 1253, 1263 (9th Cir. 2013). First, courts identify the factors relevant to the agency's exercise of discretion for the relief being sought. Id. Second, courts determine whether, in light of those factors and the circumstances of the defendant's case, it is plausible the defendant would have been granted relief from removal. Id. A defendant cannot succeed merely by showing a theoretical possibility of relief, but he need not prove that relief was probable. See United States v. Gonzalez–Valerio , 342 F.3d 1051, 1054 (9th Cir. 2003). Defendant need only establish "some evidentiary basis on which relief could have been granted." United States v. Reyes-Bonilla , 671 F.3d 1036, 1050 (9th Cir. 2012).

Mr. Ochoa asserts that...