Opinion
19-cr-544 (JSR)
2019-10-19
UNITED STATES of America v. Esteban BARRERA MORENO, a/k/a Jose Meza Jimenez a/k/a Andres Reyes-Martinez Defendant.
Courtney Heavey, Assistant US Attorney, United States Attorney's Office, New York, NY, for Plaintiff. Clay Hubbard Kaminsky, Public Defender or Community Defender Appointment, Federal Defenders of New York Inc., New York, NY, for Defendant.
Courtney Heavey, Assistant US Attorney, United States Attorney's Office, New York, NY, for Plaintiff.
Clay Hubbard Kaminsky, Public Defender or Community Defender Appointment, Federal Defenders of New York Inc., New York, NY, for Defendant.
MEMORANDUM ORDER
JED S. RAKOFF, U.S.D.J.
On July 30, 2019, defendant Esteban Barrera Moreno was indicted in a one-count Indictment charging him with illegal reentry, in violation of 8 U.S.C. § 1326(a) & (b)(2). Indictment, ECF No. 8. Now before the Court is Barrera's motion to dismiss the Indictment under 8 U.S.C. § 1326(d) and Fed. R. Crim. P. 12(b)(3). ECF No. 11. For the reasons set forth below, the motion is denied.
Background
The following facts are largely undisputed between the parties, at least for purposes of this motion, except where indicated otherwise.
Barrera was born in Tamazula, in the state of Durango in Mexico. Declaration of Esteban Barrera Moreno, ECF No. 13-1, Ex. A ("Barrera Aff.") ¶ 2. He attended only one year of school. Id. He first entered the United States illegally as a young adult in 1998, seeking better-paying work. Id. 51 3. He has four children, all of whom are U.S. citizens. Id.
On or about April 7, 2007 and again on June 12, 2007, Barrera was charged with driving without a license; after the second time, he was arrested by local law enforcement in Alamance County, North Carolina. Department of Homeland Security Form I-213, ECF No. 13-1, Ex. B ("Form I-213"); ECF No. 13-1, Ex. D, at EB 153. Alamance County Sheriff's officers - acting as deputized Immigration and Customs Enforcement ("ICE") agents, also known as 287(g) officers - lodged an ICE detainer against Barrera, preventing his release. Barrera Aff. ¶ 4.
The 287(g) program, codified at 8 U.S.C. § 1357(g), authorizes ICE to enter into agreements with state and local law enforcement agencies to deputize their officers and employees to perform specified ICE functions.
On June 27, 2007, Barrera was "transferred" to ICE custody. Form I-213. He recalls that he spoke in Spanish with an officer — according to the records, a 287(g) officer named Charles Kernodle — but alleges that the officer's Spanish was not fluent. Id. ¶ 5. According to Barrera, the officer (Kernodle) told Barrera that if Barrera chose to contest his deportation before an immigration judge, Barrera would stay in detention for an extended period, perhaps even a year or more, before being deported. Id. ¶ 6. But, Barrera alleges, the officer told him that, if he signed for his deportation immediately, he could be removed quickly. Id. The officer presented Barrera with some papers and indicated where he should sign to accept deportation and speed up the process. Id. Barrera further alleges that he is virtually illiterate and could not read the papers, but that the officer did not read the papers aloud or even tell him to take time to read them before signing. Barrera Aff. ¶¶ 7, 8. Barrera alleges that he was not informed, and did not understand, that he was eligible to apply for voluntary departure in lieu of being removed. Id. ¶ 8.
The forms served and executed on June 27, 2008 include: a Warrant for Arrest of Alien (Form I-200), a Notice of Custody Determination (Form I-286), a Notice to Appear Before the Immigration Judge (Form I-862), a Notice of Rights and Request for Disposition (Form I-826), and a pre-printed "Jurat" entitled "Statements Made for the Issuance of a Final Removal." ECF No. 31-1, Exs. E-H. Collectively, these forms purport to show that Barrera agreed to give up, among other rights, his "right to a hearing before the Immigration Court" by voluntarily stipulating to his removal. Notice of Rights and Request for Disposition, ECF No. 31-1, Ex. G ("Form I-826").
This form advises a noncitizen that he or she would be detained pending a final determination by an immigration judge, but that he or she could request a review of that determination. Notice of Custody Determination, ECF No. 13-1, Ex. E, EB 44 ("Form I-286").
This form initiates a removal proceeding in immigration court, akin to a complaint. See generally Pereira v. Sessions, ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). It advises a noncitizen of rights he or she would have at an immigration hearing.
This form advises a noncitizen, inter alia, that he or she has a "right to contact an attorney or other legal representative," a "right to a hearing before the Immigration Court to determine whether [he or she] may remain in the United States," but may waive the latter right and "request to return to [his or her] country as soon as possible, without a hearing." Form I-826.
Problems relating to the Jurat are the main basis for Barrera's motion to dismiss. It had a pre-printed recitation in English and Spanish of the acknowledgements, concessions, and waivers required by 8 C.F.R. § 1003.25 for a stipulated removal in lieu of a hearing before an immigration judge. Statements Made for the Issuance of a Final Removal, ECF No. 13-1, Ex. H ("Jurat"). Most importantly for present purposes, it recites that the signatory or his or her attorney, if any, has read the Jurat or had it read to him or her in a language he or she understands, and that he or she "can unequivocally state that he or she has submitted this [Jurat] voluntarily, knowingly, and intelligently." Id. Barrera, as noted, avers that the Jurat was never read to him, that the agent rushed through the process and never informed him of the option of voluntary departure, and numerous other problems.
The Jurat, signed by Barrera, states: "I have the right to be represented by an attorney at no expense to the government and ... I choose to represent myself." Jurat. It also has an acknowledgement of the "right to a hearing before an immigration judge" and various rights associated with such a hearing, including having the judge "consider if there was any relief from removal available" and his or her "right to appeal" any decision by the immigration judge. Id. The form also says, however, that the signatory agrees to "waive those rights and request that [his or her] removal proceedings be conducted solely by way of written record without a hearing" and acknowledges that he or she was "giv[ing] up [his or her] right to apply for any relief for which [he or she] might have been eligible," including that he or she was agreeing not to make any "application for relief from deportation such as would allow [him or her] to remain in the United States or to depart voluntarily." Id.
On August 3, 2007, Immigration Judge William Cassidy of the Atlanta immigration court issued a written Decision and Order, without a hearing, pursuant to Barrera's Jurat. Decision and Order of the Immigration Judge, ECF No. 13-1, Ex. I ("2007 Deportation Order"). Judge Cassidy held that: "In his stipulation, respondent states that he understands the consequences of his request and that he has entered his request voluntarily, knowingly, and intelligently. The Court finds the alien's waiver to be voluntary, knowing and intelligent." Id. On this basis, he ordered Barrera be removed to Mexico. Id. Barrera asserts that omissions and inconsistencies relating to the Jurat should have alerted Judge Cassidy to its insufficiency in this case, and, accordingly, the judge should have at least inquired further. Nevertheless, on the basis of the 2007 Deportation Order, Barrera was transferred to the Hidalgo, Texas port of entry and was removed to Mexico on or about August 18, 2007. Warrant of Removal/Deportation, ECF No. 13-1, Ex. J.
Very shortly thereafter, at some time before October 4, 2007, Barrera once again entered the United States illegally. And very shortly after that, he was arrested for heroin distribution and charged in a two-count Indictment with conspiracy to distribute a kilogram and more of heroin and with substantive distribution, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A). See Indictment, United States v. Moreno, 07-cr-358 (M.D.N.C.), ECF No. 14-1 ("2007 Indictment"); Declaration of S. Isaac Wheeler, ECF No. 13 ("Wheeler Decl.") ¶ 11. Barrera pled guilty to the conspiracy count of the 2007 Indictment and was sentenced to 44 months' imprisonment. 2007 Indictment.
Around the time of his release from prison, Barrera, on May 17, 2010, signed a Record of Sworn Statement, written in English and Spanish, with a series of questions. Record of Sworn Statement, ECF No. 14-3. In that form, he confirmed that he entered the United States illegally, that he had previously been deported and did not receive permission to re-enter the United States, and that he was willing to sign a Stipulated Request for Removal Order and Waiver of a Hearing. Id. Barrera here makes no claim that he did not understand the Record of Sworn Statement or that he did not sign it voluntarily.
However, rather than proceeding with a new Stipulated Request, ICE, on or about December 22, 2010, served Barrera with a Notice of Intent/Decision to Reinstate Prior Order based on Judge Cassidy's 2007 Deportation Order. Notice of Intent/Decision to Reinstate Prior Order, ECF No. 13-1, Ex. K. The order was reinstated and, based on the reinstated order, Barrera, on January 4, 2011, was once again removed to Mexico via the Hidalgo port of entry. Warrant of Removal/Deportation, ECF No. 13-1, Ex. L; see also 8 U.S.C. § 1231(a)(5).
At some uncertain time before February 7, 2019, Barrera entered the United States illegally yet again. On or about February 7, 2019, he was arrested in New York for criminal possession of a controlled substance in the first degree, in violation of New York Penal Code § 220.21. See Complaint, ECF No. 1, at 3. He pled guilty in New York state court and was sentenced to five years' imprisonment on or about August 29, 2019. See id. He is currently serving that term.
At oral argument on this motion, Barrera's counsel, after conferring with Barrera, represented that Barrera re-entered in approximately late 2017 or early 2018. See Transcript of Oral Argument dated October 15, 2019.
On July 30, 2019, Barrera was indicted on a one-count federal Indictment charging him with illegal reentry, in violation of 8 U.S.C. § 1326(a), (b)(2). Indictment, ECF No. 7. Barrera has now moved to dismiss the Indictment under 8 U.S.C. § 1326(d) and Fed. R. Crim. P. 12(b)(3), ECF No. 11, on the ground that it ultimately rests on Judge Cassidy's allegedly defective 2007 Deportation Order that was reinstated in 2010.
Analysis
In order to meet its burden of proving the charge of illegal reentry after deportation, the Government must establish, inter alia, that Barrera was previously deported at least once and that the deportation was lawful. See 8 U.S.C. § 1326. In United States v. Mendoza-Lopez, the U.S. Supreme Court held that an illegal reentry prosecution cannot rest upon a prior deportation order that was obtained in violation of the noncitizen's rights or without a meaningful opportunity for redress or judicial review. 481 U.S. 828, 837-39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). Congress codified Mendoza-Lopez's constitutional holding in 8 U.S.C. § 1326(d), which provides that Barrera must meet the following requirements to bring a successful collateral attack against his prior deportation order:
(1) the alien 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 the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. § 1326(d). Barrera "must establish all three in order to succeed in his challenge to his removal order." United States v. Fernandez-Antonia, 278 F.3d 150, 157 (2d Cir. 2002). And to show fundamental unfairness under § 1326(d)(3), Barrera "must show both a fundamental procedural error and prejudice resulting from that error." Id. at 159.
Unless otherwise indicated, in quoting cases all internal quotation marks, alterations, emphases, footnotes, and citations are omitted.
The parties have extensively and thoroughly argued, in their briefs and during oral argument, the issue of whether the entry of the 2007 Deportation Order was fundamentally unfair, either because it was the fruit of the allegedly improper circumstances leading to the signing of the Jurat or because Judge Cassidy improperly relied on the Jurat. See Memorandum of Law in Support of Defendant's Motion to Dismiss the Indictment, ECF No. 12 ("Barrera Mem."), at 16-26; The Government's Memorandum of Law in Opposition to the Defendant's Motion to Dismiss, ECF No. 14 ("Gov. Opp."), at 15-22; Reply Memorandum of Law in Support of Defendant's Motion to Dismiss the Indictment, ECF No. 15 ("Barrera Reply"), at 8-16. But most of this dispute is irrelevant, because the Court, applying the two-pronged test of fundamental unfairness set forth in Fernandez-Antonia, 278 F.3d at 157, concludes that, even if the 2007 Deportation Order were the product of fundamentally improper procedures (an issue the Court does not reach), Barrera cannot demonstrate prejudice from his 2010 removal pursuant to the reinstatement of the 2007 Deportation Order.
It is important to note that, while Barrera complains that the 2007 Deportation Order and the Jurat on which it was based were procedurally defective in numerous respects, the only prejudice he claims is that, but for these errors, he might have qualified for voluntary departure, a form of departure that would not support the present prosecution. But even if this were so when the order was first entered in 2007, nevertheless, before it was reinstated in 2010, Barrera was convicted of an aggravated felony — conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 841(a), 846. Once Barrera was convicted of this aggravated felony, he became statutorily ineligible for voluntary departure, which was the only alternative he might otherwise have had to deportation. See 8 C.F.R. § 1240.26(b)(1)(i)(E), (c)(1)(iii). That is, even assuming arguendo the truth of the alleged procedural errors with respect to Barrera's 2007 Deportation Order, the 2010 reinstatement still supports the instant prosecution, because the reinstated removal order did not cause any prejudice, since by that time Barrera would not have been eligible for voluntary departure in any event. See Fernandez-Antonia, 278 F.3d at 159 (holding that prejudice requires defendant to show that "absent the procedural errors, he would not have been removed").
Barrera relies on the Ninth Circuit's decision in United States v. Arias-Ordonez, 597 F.3d 972 (9th Cir. 2010) to argue that a valid reinstatement of an invalid removal order provides no independent basis for a charge of reentry after removal. Barrera Reply 3-5. But Arias-Ordonez did not deal at all with the issue of whether an intervening aggravated felony conviction eliminates the only prejudice the reinstatement of the allegedly defective earlier order might entail.
In sum, Barrera has failed to demonstrate prejudice from his 2010 removal pursuant to reinstatement of the 2007 Deportation Order. Therefore, Barrera's motion to dismiss the Indictment is denied.
At the oral argument on October 15, 2019, the Court, being uncertain how long it would take to resolve the instant motion, postponed sine die the trial of this case originally scheduled for November 18, 2019. Since then, the Court has scheduled a different criminal trial to begin on November 18, 2019, so that date is no longer available. But counsel are hereby directed to jointly call chambers by no later than October 26, 2019 to set a new date for the trial of this case.
The Clerk is directed to close the entry with the docket number 11.
SO ORDERED.