United States v. Pineda

UNITED STATES, v. PABLO ARTURO PINEDA, Defendant.

18-CR-523 (NGG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

October 8, 2020

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Defendant Pablo Arturo Pineda is charged with one count of illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(1). (See Indictment (Dkt. 1).) Section 1326(a) makes it a crime for a person who "has been denied admission, excluded, deported, or removed" from the United States to reenter the country. The indictment asserts that Mr. Pineda had "previously been deported and removed from the United States" (id. at 1), a claim predicated on an administrative order of removal. (See Final Administrative Removal Order ("Removal Order") (Dkt. 13-10).) Before the court is Mr. Pineda's motion to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12. (Mot. to Dismiss Indictment ("Mot.") (Dkt. 13)).

For the reasons stated below, Defendant's motion is DENIED.

I. BACKGROUND

A. Facts

Mr. Pineda was born in El Salvador on September 18, 1978 and is a citizen and national of El Salvador. He entered the United States via California in or around 1997, and applied for Temporary Protected Status ("TPS") on or about April 6, 2001. (See Appl. For Temporary Protected Status ("TPS Appl.") (Dkt. 13-2).) He was approved for employment authorization on June 28, 2001 and his TPS application was fully approved on June 10, 2004. (Id.) On September 20, 2005, Mr. Pineda was convicted in a Texas state court, after pleading guilty to the offense of Indecency to a Child Younger than 17 years in the second degree, a violation of Texas Penal Code § 21.11(a)(1). (See Tex. Criminal J. (Dkt. 13-3).) He was sentenced to four years in custody and fined $2,000. (Id.)

On September 11, 2006, the Department of Homeland Security ("DHS") prepared a record of deportable alien for Mr. Pineda based on his conviction. (See R. of Deportable Alien (Dkt. 13-4).) That same day, DHS interviewed Mr. Pineda, who provided a sworn affidavit in response to questioning. (See R. of Sworn Statement (Dkt. 13-5).) The sworn affidavit included a preprinted questionnaire that was written in both English and Spanish. (Id.) While it is unclear from the form which language was used in the interview, Mr. Pineda asserts that the interview was conducted "mostly in English, some in Spanish." (See Aff. of Pablo Pineda ("Pineda Aff.") (Dkt. 21-1) ¶ 7a.) Mr. Pineda indicated on the sworn statement (based on prompts in English and Spanish) that he understood his rights and that he was willing to waive those rights to speak with the DHS officer. (See R. of Sworn Statement.) He also indicated that he had a fear of prosecution or torture should he be removed from the United States. (Id.) The sworn statement contains a certification in both English and Spanish that "the answers attributed to me herein are true and correct to the best of my knowledge and belief and that this statement is a full, true, and correct record of my questioning by the above-named officer of the Immigration and Naturalization Service." (Id.) Mr. Pineda signed the sworn statement before an INS Officer, who filled in his or her name (Id.)

However, Mr. Pineda asserts that he was never given the sworn affidavit to read at the time he signed it, and that he was not given a copy after he signed it. (Pineda Aff. ¶ 7-e.) He asserts that because the September 11, 2006 interview was conducted mostlyin English, he "did not understand most of what" the officer said. (Id. ¶ 7-a.) According to Mr. Pineda, the officer told him that "if I didn't sign the papers, I wouldn't get good time," and he answered the questions because he "thought it would help with parole."(Id. ¶¶ 7-b, 7-d ("I signed the papers because I thought they would help me get out of prison.").) Mr. Pineda claims that the officer did not tell him that the answers he gave could be used against him. (Id. ¶ 7-b.) Mr. Pineda further asserts that, other than signing the sworn affidavit at the direction of the officer, he did not fill out any other parts of the document. (Id.¶ 7-e.)

Thereafter, immigration officials instituted expedited removal proceedings against Mr. Pineda pursuant to 8 U.S.C. § 1228, which provides for "[e]xpedited removal of aliens convicted of committing aggravated felonies."¹ On April 20, 2007, INS prepared a Form I-851, Notice of Intent to Issue a Final Administrative Order ("Form I-851") for Mr. Pineda. (See Notice of Intent to Issue a Final Removal Order (Dkt. 13-8).) The Form I-851, written entirely in English, advised Mr. Pineda that he was subject to administrative removal proceedings based on the allegations that he was not a citizen of the United States and that hehad entered the United States without inspection. (Id.) Under the heading "Charge," the Form explained that Mr. Pineda was deportable because he had been "convicted of an aggravated felony," and, based on 8 U.S.C. § 1228(b), was subject to removal without a hearing before an Immigration Judge ("IJ"). (Id.) The Form I-851 did not provide any more specifics about the aggravated felony conviction; in fact, although it explained that an aggravated felony is defined by the INA, it left blank the relevant statutory section. (Id. ("[Y]ou have been convicted of an aggravated felony as defined in section 101(a)(43)( ) of the Act, 8 U.S.C. 1101(a)(43)( ).").

The Form I-851 further advised Mr. Pineda of his rights and responsibilities, including, inter alia: he could be represented by counsel; he had to respond to the charges within 10 calendar days of the service of the Notice but could request an extension of time to respond; he could rebut the charges, request an opportunity to review the government's evidence, admit deportability, designate the country of removal, and, if he feared persecution or torture, request withholding of removal under statute or the Convention Against Torture. (Id.) He was also advised that he could petition for review of the order in the appropriate United States Court of Appeals within 30 days of the date of the final removal order. (Id.)

On August 20, 2007, the Form I-851 was served on Mr. Pineda in person. (Id.) On the back of the Form I-851, the Certificate of Service states that an Immigration Enforcement Agent "explained and/or served this Notice of Intent to the alien in the English/Spanish language" with "Spanish" circled. (Id.) Directly below, Mr. Pineda signed under a line stating: "I acknowledge that I have received this Notice of Intent to Issue a Final Administrative Removal Order." (Id.). Further down the document, there is a section captioned: "I Wish to Contest and/or to Request Withholding of Removal" that contains several check boxes. (Id.).

Mr. Pineda did not fill out this section; instead, he filled out a section further down the page captioned: "I Do Not Wish to Contest and/or Request Withholding of Removal." (Id.) In that section, Mr. Pineda selected a check box that read:

I admit the allegations and charge in this Notice of Intent. I admit that I am deportable and acknowledge that I am not eligible for any form of relief from removal. I waive my right to rebut and contest the above charges. I do not wish to request withholding or deferral of removal. I wish to be removed to [El Salvador].

(Id.) Below that, Mr. Pineda selected a check box that stated: "I understand that I have the right to remain in the United States for 14 calendar days in order to apply for judicial review. I do not wish this opportunity. I waive this right." (Id.)

In his affidavit, Mr. Pineda denies that the Notice was translated into Spanish, denies that he was particularly notified of his rights and responsibilities as detailed on the first page of that document, denies that the Certificate of Service was translated into Spanish, and denies that he understood that he was giving up his right to contest or request withholding of removal. (See Pineda Aff. ¶¶ 8a-f.) Mr. Pineda further avers that he was told his removal would be automatic, that he was told he had no right to a hearing before a judge, and that he was told it was "his problem" that he feared returning to El Salvador. (Id.)

On January 9, 2009, after the completion of Mr. Pineda's Texas sentence, he was taken into immigration custody and provided with a Notice of Custody Determination ("NCD"). (See Notice of Custody Determination (Dkt. 13-9).) The NCD advised Mr. Pineda that he was being detained by INS. He signed the NCD, acknowledging receipt and indicating that he was not seeking a redetermination of the custody decision by an IJ. (Id.) In his affidavit, Mr. Pineda asserts that the NCD was not translated into Spanish for him and claims that he signed it without knowing itsmeaning, and did not fill out any other portion of the document. (See Pineda Aff. ¶ 9.) On January 30, 2009, Mr. Pineda was deported. (See Mem. in Supp. of Mot. ("Mem.") (Dkt. 13-1) at 6.)

Sometime prior to June 21, 2018, Mr. Pineda reentered the United States illegally. (See Gov't Mem. in Opp. of Mot. ("Gov't Opp.") (Dkt. 24) at 8.) On June 21, 2018, Mr. Pineda was arrested in New York, and on September 25, 2019, pleaded guilty to Course of Sexual Conduct Against a Child in the 2nd Degree: Two or More Acts against a Child under the Age of 11, in violation of New York Penal Law § 130.80(1)(A). (Id.) He was sentenced to a term of four years of imprisonment and five years of post-release supervision. (Id.) Mr. Pineda also pleaded guilty to Sex Offender Registry Violation in violation of New York Corrections Law § 168-f, for which he was sentenced to one year of imprisonment. (Id. at 9.) His conditional release date for his New York State convictions is November 20, 2021, and his maximum expiration date is June 18, 2022. (Id.)

B. Procedural History

On September 27, 2018, Mr. Pineda was charged in an indictment with illegal entry, in violation of 8 U.S.C. §§ 1326(a) and (b)(1). (Indictment.) On March 13, 2020, Mr. Pineda filed the...