LEONARD T. STRAND, District Judge.
This matter is before me on a Report and Recommendation (R&R) filed by the Honorable C.J. Williams, United States Magistrate Judge, in which Judge Williams recommends that I grant defendant's motion (Doc. No. 12) to dismiss the indictment. Doc. No. 33. The Government filed an objection (Doc. No. 44) and defendant filed a response (Doc. No. 47). The matter is fully submitted.
On July 20, 2016, the Grand Jury returned an indictment against defendant Jaime Limones-Valles, charging him with illegal reentry by an aggravated felon. Doc. No. 2. Defendant filed his motion to dismiss the indictment on August 28, 2016. On September 27 and September 30, 2016, Judge Williams held a hearing on the motion. Doc. Nos. 23, 29. Judge Williams filed his R&R on October 19, 2016.
A district judge must review a magistrate judge's R&R under the following standards:
28 U.S.C. § 636(b)(1); see also Fed. R. Crim. P. 59(b). Thus, when a party objects to any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed under at least a "clearly erroneous" standard. See, e.g., Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that when no objections are filed "[the district court judge] would only have to review the findings of the magistrate judge for clear error"). As the Supreme Court has explained, "[a] finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under a more-exacting standard even if no objections are filed:
Thomas v. Arn, 474 U.S. 140, 150 (1985).
After a de novo review of the record, including the transcript of the hearing (Doc. No. 48) and the parties' exhibits (Doc. Nos. 12-2 to 12-6 and 22-1 to 22-22), I adopt the findings of fact set forth in the R&R. See Doc. No. 33 at 3-8. In short, Limones-Valles is a citizen of Mexico who entered the United States unlawfully as a teenager. He ultimately settled in Nobles County, Minnesota, where he lived with his wife and two children. In 2001, Minnesota authorities charged Limones-Valles with two counts of aggravated forgery. Pursuant to a plea agreement, one count was dropped and Limones-Valles pleaded guilty to the other count.
In its judgment, the Minnesota court noted that "the presumed sentence" would be "twelve months and one day." However, the court "stayed" imposition of judgment on condition that Limones-Valles "accept the supervision of a probation officer" for five years, avoid additional law violations and either pay a fine or perform 100 hours of community service work. Doc. No. 12-3 at 1-2. During the sentencing hearing, the court initially expressed a belief that the plea agreement called for a sentence of 90 days in jail. However, upon being advised that the parties had agreed to "no jail time," the court stated that this provision "will be stricken in the sentence then." Doc. No. 22-21 at 4-5. And, in fact, the written order of judgment makes no reference to a 90-day term of incarceration.
Shortly after being sentenced, Limones-Valles was deported by Immigration and Naturalization Services (INS)
Limones-Valles returned to the United States at some point prior to 2004 and moved to Colorado. A Fort Collins, Colorado, police officer encountered Limones-Valles during a roadside stop on July 22, 2004. Limones-Valles provided his real name and the officer identified him as an alien who had previously been deported. Limones-Valles was arrested and ICE began removal proceedings. Authorities used more-standardized removal procedures during the 2004 removal, including communicating with Limones-Valles in Spanish.
At some point after 2004, Limones-Valles again returned to the United States. He was arrested in Iowa in 2016 and has been charged him with illegal reentry by an aggravated felon.
Doc. No. 12-1 at 1-2. Specifically, Limones-Valles argues that because the imposition of judgment for his Minnesota conviction was "stayed," he was never convicted of an "aggravated felony" and should have had the opportunity to voluntarily remove himself before compulsory removal occurred. He further argues that because the initial removal was faulty, so too was the subsequent removal in 2004, and that a conviction for illegal reentry by a deported alien would violate his due process rights pursuant to United States v. Mendoza-Lopez, 481 U.S. 828 (1987). According, Limones-Valles argues that the indictment must be dismissed.
Judge Williams correctly described the applicable legal framework. Doc. No. 33 at 8-11. In Mendoza-Lopez, the Supreme Court held that due process considerations prohibit the conviction of a previously-deported alien for illegal reentry if the deportation proceedings were fundamentally unfair and there was no meaningful opportunity for review. Mendoza-Lopez, 481 U.S. at 841. Congress then codified the standard:
8 U.S.C. § 1326(d). "The defendant must meet all three requirements in order to successfully collaterally attack the prior removal order." United States v. Tamayo-Baez, 820 F.3d 308, 313 (8th Cir. 2016). Put another way:
United States v. Mendez-Morales, 384 F.3d 927, 929 (8th Cir. 2004). Additionally,
United States v. Avila, 522 F. App'x 369, 371 (8th Cir. 2013) (unpublished) citing United States v. Rodriguez, 420 F.3d 831, 834 (8th Cir. 2005) and Mendez-Morales, 384 F.3d at 931-32. "When the defendant satisfies all of § 1326(d)'s requirements, the district court must dismiss the illegal reentry charge." United States v. Lopez-Collazo, 824 F.3d 453, 458 (4th Cir. 2016)
Judge Williams noted that the Eighth Circuit has not yet determined which party has the burden of showing that a defendant's waiver of rights was voluntary. Judge Williams concluded that because a defendant generally has the burden of proving defects in his removal, the defendant also has the burden of showing the waiver was not voluntary. Doc. No. 33 at 10 (citing United States v. Sanchez, No. Cr. 14-51, 2014 WL 3952367, at *3 (D. Minn. Aug. 13, 2014)). I agree. Accordingly, the burden is on the defendant, in all aspects, to show that his previous removals violated his due process rights and, therefore, that the present indictment should be dismissed.
Judge Williams then turned to defendant's argument that his 2001 removal is relevant to the present inquiry. The Government argues that because only the 2004 removal is cited in the indictment, the indictment is proper even if the 2001 removal was constitutionally deficient. Judge Williams found that because the 2001 removal gave rise to the 2004 removal, he should consider both. In reaching this conclusion, Judge Williams cited United States v. Charleswell, 456 F.3d 347 (3d Cir. 2006). In that case, the Third Circuit stated:
United States v. Charleswell, 456 F.3d 347, 351-52 (3d Cir. 2006).
Doc. No. 33 at 14. Regarding the first factor, Judge Williams stated:
defendant signed and initialed the forms after reading them in Spanish. . . Doc. No. 33 at 15.
Regarding, the second factor, judicial review, Judge Williams did not make a particularized finding. However, Judge Williams later noted:
Doc. No. 33 at 23-24. Moreover, because Judge Williams ultimately concluded that Limones-Valles is entitled to have the indictment dismissed, he necessarily found that Limones-Valles was denied the opportunity for judicial review.
Regarding the third factor, Judge Williams found both a fundamental procedural defect (Limones-Valles' conviction was not an aggravated felon and he should not have been subject to expedited removal) and that the removal resulted in actual prejudice (it is more likely than not that Limones-Valles would have qualified for voluntary removal). Judge Williams concluded as follows:
Doc. No. 33 at 25.
The Government filed a timely objection (Doc. No. 44) to the R&R and advances two arguments. First, the Government argues that the 2001 removal cannot taint the 2004 removal and that Judge Williams should have applied the three factor test to the 2004 removal. Second, the Government argues that Limones-Valles did not meet the criteria for voluntary departure:
Doc. No. 44 at 10. Accordingly:
Doc. No. 44 at 11.
In his response (Doc. No. 45), Limones-Valles contends Judge Williams was correct in finding that the failings during the 2001 removal tainted the 2004 removal. He further argues that the good moral character requirement would not have applied to the type of voluntary removal he would have sought. Accordingly, he maintains that but for the alleged errors discussed above, he would have been eligible to voluntarily remove himself from this country.
Before applying the three factor test set out above, I will address three issues that are key to the resolution of defendant's motion. First, was Limones-Valles convicted of an aggravated felony? Second, would Limones-Valles have been eligible for voluntary removal absent the conviction for the aggravated felony? Third, did the 2004 removal proceedings cure deficiencies that occurred during the prior removal?
An "aggravated felony" is "an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered for which the term of imprisonment is at least one year." 8 U.S.C. § 1101 (a)(43)(R) (emphasis added). Thus, "[a]n `aggravated felony' under the statute is defined in terms of the sentence, not the criminal acts involved in the conviction, nor in terms of the conviction itself." United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000). Judge Williams concluded that Limones-Valles was not an aggravated felon because he was not subjected to a sentence of a year or more of confinement.
There is no dispute that Limones-Valles was charged with forgery and could have been sentenced to at least one year in prison. However, the state court "stayed" imposition of that sentence. This raises the question of what a "stayed" imposition means under Minnesota law. The Minnesota Court of Appeals has explained:
State v. Peterson, No. CO-00-2111, 2001 WL 741637, at *2 (Minn. Ct. App. July 3, 2001) (unpublished). As stated in Stafford,
Stafford, 368 N.W.2d at 366 (emphasis added); see also State v. Beaty, 696 N.W.2d 406, 410 (Minn. Ct. App. May 24, 2005) (finding that the court that vacates the stay of imposition is the first to sentence a defendant and that "[defendant] could not have known the duration of his sentence before the stay of imposition was vacated . . .").
To rebut this argument in its original brief, the Government cited Escoto-Castillo v. Napolitano, 658 F.3d 864 (8th Cir. 2011), which addressed a stayed Minnesota sentence in the context of an immigration case. However, Escoto-Castillo is not analogous. First, and most importantly, it dealt with a Minnesota state court that imposed a stay of execution of a sentence, not a stay of imposition of the sentence. Id. at 865. As set forth above, Minnesota law makes a clear distinction between the stayed execution of a sentence and the stayed imposition of a sentence. In the latter situation, "there is no sentence of imprisonment." Stafford, 368 N.W.2d at 366 (emphasis added). Second, and more importantly, Escoto-Castillo did not reach the underlying issue because the court found that the record was not sufficiently developed. 658 F.3d at 866. Accordingly, it has no precedential value. It is clear that under Minnesota law, Limones-Valles has not been subject to a term of imprisonment.
This does not end the inquiry, however, because the Government argues that the federal statutory language, as interpreted by the Eighth Circuit, does not recognize the distinction adopted by the Minnesota courts. In its original reply brief (Doc. No. 32), the Government cited 8 U.S.C. § 1101(a)(48)(B), which states:
In explaining this statute, the Eighth Circuit has stated:
United States v. Demirbas, 331 F.3d 582, 584 (8th Cir. 2003). Thus, the Government argues that regardless of whether the Minnesota court stayed execution or imposition of the sentence, Limones-Valles was convicted of a qualifying offense, received a sentence of a year or more, and was therefore subject to expedited removal.
However, Judge Williams found that the federal statutory scheme and the Minnesota state courts do not use the word "imposition" in the same way. The rationale suggested in the R&R, and urged by the defendant, is that the federal statute uses "imposition" as a synonym for execution and, in context, both refer to situations in which a defendant was convicted and sentenced to a term of imprisonment but did not actually serve that imprisonment. Essentially, the difference is between "suspension of imposition of the sentence," and "suspension of imposition of the sentencing." In support of this conclusion, Judge Williams analyzed the various cases cited by the Government in support of its argument that federal law does not support Limones-Valles' argument:
Doc. No. 33 at 20. Demirbas demonstrates the incongruity in the use of the terms imposed and imposition. The Eighth Circuit stated, "the Missouri court consequently revoked his probation and imposed a new sentence of four years of incarceration, although the court suspended the imposition of the sentence and ordered five years of probation. This four-year suspended sentence of incarceration is at the heart of Demirbas's appeal." Demirbas, 331 F.3d at 583 (emphasis added). Thus, the Missouri court both imposed a sentence and suspended imposition of that sentence. Since something cannot both be and not be, it seems clear that what the Eighth Circuit meant by "imposition" was actually execution; i.e., the sentence was imposed by the Missouri court but the execution of that sentence was suspended such that Demirbas did not serve the time imposed. This is distinct from a stay of imposition under Minnesota law, in which no sentence is rendered.
Judge Williams also discussed United States v. Renteria-Aguilar, No. 15cr2399, 2016 WL 2931117 (S.D. Cal. May 19, 2016) (appeal pending), a case that addressed a similar situation. The court found that the defendant's sentence had been imposed but suspended and that he therefore qualified for removal:
2016 WL 2931117, at *2. Thus, the court held that stayed and suspended had the same meaning, such that the sentence had been imposed but the execution of that sentence was forestalled. Again, the key distinction is that imposed and executed are not interchangeable under the applicable Minnesota law. Rather, a stay of imposition means no sentence is imposed.
That distinction has been recognized by other federal courts. United States v. Guzman-Bera, 216 F.3d 1019 (11th Cir. 2000), dealt with an immigrant who had previously been deported. He was convicted of illegal reentry and received a sentence enhancement because of his status as an aggravated felon. On appeal, he challenged whether he met the criteria as an aggravated felon. The Eleventh Circuit found that he did not:
Guzman-Bera, 216 F.3d at 1020-21. Judge Williams found the analysis of what constitutes an "aggravated felony" in Guzman-Bera to be persuasive and concluded that Limones-Valles' situation is similar. Specifically, Limones-Valles was never sentenced to a year or more in prison. The Minnesota court suspended the imposition of any sentence of imprisonment and instead sentenced Limones-Valles to probation, with the possibility of a prison sentence only if he violated his probation.
I agree and find that the suspension of the imposition of sentence as used by the Minnesota courts is different from the imposition of sentence as used in 8 U.S.C. § 1101(a)(48)(B). The former means no sentence is given, whereas the latter means a sentence is given but not carried out.
The Government also challenges whether Limones-Valles can show prejudice such that he can make a valid due process claim. The Government's argument is two-fold. The first part of the Government's argument, which was considered and rejected by Judge Williams, is that "even if immigration authorities [im]properly classified defendant as an aggravated felon, defendant cannot show actual prejudice as defendant has no protected interest in discretionary relief from removal, namely voluntary departure." Doc. No. 33 at 22. The second part, raised for the first time in the Government's objection, is that Limones-Valles would not have been eligible for voluntary removal because he did not have the requisite good moral character.
The Eighth Circuit has stated that to "demonstrate a violation of due process, an alien must demonstrate both a fundamental procedural error and that the error resulted in prejudice . . . Actual prejudice results where defects in the deportation proceedings may well have resulted in a deportation that would not otherwise have occurred." Lopez v. Heinauer, 332 F.3d 507, 512-13 (8th Cir. 2003) (internal citation omitted). Regarding the first argument, the Government cites numerous cases for the proposition that when an immigrant defendant:
Jamieson v. Gonzales, 424 F.3d 765, 768 (8th Cir. 2005). Judge Williams distinguished the "discretionary relief" cases cited by the Government:
Doc. No. 22 at 23. Essentially, Judge Williams found that the alleged due process violations in the cases cited by the Government occurred in a different context from the one at issue here. The "discretionary relief" cases cited by the Government considered whether the alien's hearing comported with due process and found that due process was not violated when the alien did not receive a desired discretionary outcome. The question in this case is whether Limones-Valles was denied due process by being removed without a hearing. Put more simply, Limones-Valles does not contend that his due process rights were violated because he did not receive a discretionary outcome. Instead, he alleges that his rights were violated because he was not given an opportunity to be heard.
This distinction has been noted by other district courts. United States v. Reyes, 907 F.Supp.2d 1068 (N.D. Cal. 2012), similarly dealt with a defendant who was deported without a hearing after officials determined he was convicted of an aggravated felony. The court stated:
Id. at 1072. The court continued:
Id. After analyzing the California offense at issue, the court concluded:
Id. at 1077. The court then considered the prejudice prong and found that the defendant would have been both eligible to receive voluntary departure from an immigration judge and that he likely would have been granted voluntary departure. Accordingly, "the Court therefore finds that Defendant had a `plausible ground for relief from deportation,' (Ubaldo-Figueroa, 364 F.3d at 1050) and was prejudiced by the defects underlying his deportation proceedings." Id. at 1079.
The analysis here is similar. There is no doubt that if Limones-Valles was challenging the outcome of an immigration hearing and was arguing only that a defect denied him discretionary relief, his due process claim would fail. However, that is not the issue here. I find that I must consider whether Limones-Valles was eligible for voluntary departure because the alleged due process violation is not the denial of a particular type of discretionary relief after a hearing, but the denial of the hearing where relief may have been available.
The second (and apparently just discovered) part of the Government's argument is that Limones-Valles would not have been eligible for voluntary removal because he does not have the requisite good moral character. Under 8 U.S.C.A. § 1229c(b)(1)-(b)(1)(B), "[t]he Attorney General may permit an alien voluntarily to depart the United States at the alien's own expense if, at the conclusion of a proceeding under section 1229a of this title, the immigration judge enters an order granting voluntary departure in lieu of removal and finds that . . . the alien is, and has been, a person of good moral character for at least 5 years immediately preceding the alien's application for voluntary departure." As set out in the Government's objection:
Doc. No. 44 at 10.
Limones-Valles does not contest the Government's assertion that good moral character can be a requirement for voluntary departure. Nor does Limones-Valles dispute the definition of "good moral character" set forward by the Government. Rather, Limones-Valles argues that the good moral character requirement would not have applied to the voluntary removal he would have sought. Specifically:
Doc. No. 47 at 2-3.
There is an important distinction between 8 U.S.C. §§ 1229c(a) and 1229(c)(b). The former is a broad provision that gives the Attorney General power to grant voluntary removal, absent a few exceptions, prior to the completion of removal proceedings. The latter is narrower, dealing with removal after the completion of immigration proceedings, and imposes numerous restrictions. The clear intent is to make it relatively easy to offer voluntary removal to immigrants who have not been convicted of aggravated felonies prior to the completion of the removal proceedings, but to require additional caution in granting voluntary removal after the completion of proceedings. A recent unpublished case, United States v. Escalante, No. 15-50279, 2016 WL 6892765 (9th Cir. Nov. 23, 2016), highlights the difference in the two sections. In that case, the immigrant defendant sought to dismiss an illegal reentry indictment on grounds that she would have been eligible for voluntary removal had her original removal comported with due process. However, she had previously been convicted of a willful injury aggravated felony. The court stated:
2016 WL 6892765, at *1.
Here, the Government has made a compelling argument that Limones-Valles would have been ineligible for voluntary departure after the conclusion of removal proceedings in 2001 because he admitted to an offense involving moral turpitude. However, I agree with Limones-Valles that if he was not convicted of an aggravated felony (and I have found that he was not), he would have been eligible for voluntary removal before the completion of the removal proceedings pursuant to 8 U.S.C. § 1229c(a). Accordingly, the Government's objection is denied as to this issue.
The Government notes that the indictment invokes only the 2004 removal and contends that because that removal comported with due process, Limones-Valles cannot "reach back" and use his 2001 removal to challenge the validity of the 2004 removal. The Government further argues that Judge Williams should have applied the three factor test to the 2004 removal, not to the 2001 removal. The Government points out that in 2004, Limones-Valles consented to removal and waived his right to a hearing.
It is true that during the 2004 removal proceedings, Limones-Valles checked a box that, roughly translated, amounted to a waiver of his right to appear before an immigration judge. See Doc. No. 22-13. Limones-Valles makes no credible allegation that there were any procedural failures during the 2004 removal. On the other hand, there is no indication that even if Limones-Valles would have requested an immigration hearing, either (1) such a hearing would have occurred or (2) an immigration judge would have had the authority to set aside the prior removal. See 8 C.F.R. § 241.8(a), which states, that "[a]n alien who illegally reenters the United States after having been removed, or having departed voluntarily, while under an order of exclusion, deportation, or removal shall be removed from the United States by reinstating the prior order. The alien has no right to a hearing before an immigration judge in such circumstances."
Accordingly, because Limones-Valles had already been removed once, he had no right to a hearing before an immigration judge. Perhaps more importantly, the immigration court would have no authority to grant relief in 2004 even if Limones-Valles attempted to challenge the legitimacy of the 2001 removal:
Briones-Sanchez v. Heinauer, 319 F.3d 324, 327 (8th Cir. 2003) (emphasis added). Thus, any attempt by Limones-Valles in 2004 to challenge his prior removal would have been futile.
Judge Williams relied on Charleswell, discussed extensively above, to conclude that it was proper to consider whether the 2001 removal was procedurally deficient. Judge Williams stated:
Doc. No. 33 at 13-14. I agree. The alleged procedural defects in this case occurred during the 2001 hearing. Limones-Valles had no non-futile means of attacking those defects during the 2004 removal. Thus, the 2004 removal did not cure the 2001 defects. Accordingly, under 8 U.S.C. § 1326(d), it is proper for me to consider the 2001 removal. The Government's objection that Judge Williams erred by not applying the three factor test to the 2004 removal is denied. To evaluate Limones-Valles' arguments, including whether he waived his rights and had an opportunity for meaningful judicial review, I must consider the 2001 removal.
As set out above:
8 U.S.C. § 1326(d). "The defendant must meet all three requirements in order to successfully collaterally attack the prior removal order." Tamayo-Baez, 820 F.3d at 313.
Avila, 522 F. App'x at 371. I will consider these factors in turn.
Limones-Valles argues that during the 2001 proceedings, he was not advised of his right to contest the proceedings in Spanish, his dominant language. Accordingly, he argues, he had no real opportunity to either exercise or waive any available administrative remedies. In a similar case applying section 1326(d), Chief United States District Judge Linda Reade stated:
United States v. Tamayo-Baez, No. 14-CR-3055-LRR, 2015 WL 926066, at *3 (N.D. Iowa Mar. 4, 2015) (emphasis in original), aff'd, 820 F.3d 308 (8th Cir. 2016). Thus, the issue is whether Limones-Valles was informed of his rights in Spanish.
A person facing removal who does not respond to a notice of intent to issue a final administrative removal order fails to exhaust his or her administrative remedies.
Steven Pryor, a Homeland Security agent, testified that he was the agent responsible for the 2004 removal. Understandably, he had no independent recollection of Limones-Valles's specific situation. However, based on his review of the relevant materials, he was able to describe the manner of Limones-Valles' 2004 removal and testified that the removal comported with all procedural requirements, including communicating with Limones-Valles in Spanish. See Doc. No. 48 at 30-33. Pryor stated that in a subsequent removal situation, such as Limones-Valles's removal in 2004, agents do not review the technical aspects of the alien's prior removal. Id. at 31. He also confirmed that based on the 2001 removal, there was no relief available to Limones-Valles in 2004. Id., at 34-35.
Ron Bastyr, a retired Border Patrol Agent who handled Limones-Valles' 2001 removal, testified that Limones-Valles was arrested during the immediate aftermath of the 9/11 terrorist attacks. Bastyr explained that his job was extremely demanding during this period of time and that he worked for months without taking time off. Doc. No. 48 at 58-60. He also testified that the expedited removal program for aggravated felons began during that same year. Id. at 60.
Bastyr had no independent recollection of Limones-Valles. However, he testified that it was his practice to discuss the various forms (such as Defendant's Exhibit C) with Spanish-speaking aliens in Spanish. He stated: "I would translate it to them, not word for word, but I would summarize what the form said." Id. at 70, 86-87. He also testified that he clarified issues only "if [the alien] asked [him] to." Id. When asked if aliens ever took advantage of the fourteen days allowed for appeal, he testified: "You just explain to them what the allegations are and that he's going to be removed to Mexico, and then you ask him if he wants to — wants to remain in cus[tody] — remain in jail for 14 days to ask for an extension for the final order removal. And in my career I never had an alien ever ask to — for an extension, ever." Id. at 77.
With regard to a section of a form stating that the alien could respond to or challenge the charges, Bastyr was asked to whom that response would be made. He Bastyr responded, "I'm not sure. I've never had anybody respond." Id. at 98. Similarly, when asked about a petition for review, Bastyr stated he did not know anything about it because "I've never had it happen." Id. at 99.
Nick Schmidt, another retired Border Patrol Agent involved with Limones-Valles' 2001 removal, testified that his role was largely administrative, overseeing Bastyr's work. Doc. No. 48 at 129. He stated he probably would have been present when Limones-Valles signed the forms. When asked whether the forms were read to Limones-Valles in English he stated that "if he spoke English, it might have happened, but if he didn't speak English, it would have been given in Spanish." Id. at 134.
Limones-Valles testified on his own behalf. As Judge Williams noted, his testimony lacked credibility as to certain issues. For example, Limones-Valles had numerous memory gaps and his testimony that he was not informed of his rights in Spanish in 2004 contradicts the documentary evidence (Doc. No. 22-13). However, he did testify consistently that he did not recall anyone speaking to him in Spanish during the 2001 removal process. Doc. No. 48 at 150. He further testified that if he was advised of his rights, he did not understand them because they were not given in Spanish. Id.
Based on the forgoing, Limones-Valles has met his burden of showing his waiver and consent to removal in 2001 was neither knowing nor voluntary. Although his credibility is limited, Limones-Valles maintained that he was not told of his rights in Spanish. Far more importantly, the relevant document (Doc. No. 12-4) regarding the 2001 removal is blank and does not indicate what language was used to communicate with Limones-Valles. Finally, and most importantly, Bastyr admitted that even when he spoke to aliens in Spanish he did not provide direct translations of any documents. Rather, he summarized what he felt was important. Thus, the record contains no evidence establishing that Limones-Valles was informed in Spanish of his rights or of the nature of the proceedings in 2001. Accordingly, his signed consent to the 2001 removal was not valid and Limones-Valles is excused from his failure to exhaust the available administrative remedies.
The same procedural defect also deprived him of judicial review. Specifically, because Limones-Valles was not informed of his rights in Spanish during the 2001 removal, he had no meaningful opportunity to challenge the removal.
Lopez-Collazo, 824 F.3d at 459. In Sosa, the Second Circuit considered the same factors and stated:
Sosa, 387 F.3d at 136. The failure to inform Limones-Valles in Spanish of his rights and of the nature of proceedings in 2001 necessarily interfered with his ability to seek judicial review. Accordingly, Limones-Valles has satisfied the first two factors in challenging the validity of the 2001 deportation order under 8 U.S.C. § 1326(d).
The test for the third factor is whether the removal proceedings violated due process and resulted in prejudice. "To demonstrate a violation of due process, an alien must demonstrate both a fundamental procedural error and that the error resulted in prejudice." Lopez, 332 F.3d at 512. As discussed above, I find that Limones-Valles was not convicted of an aggravated felony. The contrary and incorrect determination by immigration authorities was a fundamental procedural error that set Limones-Valles on the path to an expedited removal for which he did not qualify. Accordingly, his expedited removal was fundamentally unfair and violated due process.
The next question is whether Limones-Valles can show prejudice. To prove that an error made the proceedings fundamentally unfair, a defendant must show that the error resulted in actual prejudice. Rodriguez, 420 F.3d at 834. Actual prejudice means that the defects in the deportation proceedings may have a caused a deportation that would not otherwise have occurred. Rodriguez, 420 F.3d at 834. The defendant must show a reasonable likelihood that but for the procedural defect/due process violation, the defendant would not have been deported. Mendez-Morales, 384 F.3d at 932. In addressing the prejudice issue, Judge Williams stated:
Doc. No. 33 at 24-25.
The Supreme Court has explained voluntary departure as follows:
Dada v. Mukasey, 554 U.S. 1, 8 (2008). Voluntary removal is granted at the discretion of an immigration judge under guidance from a variety of regulations and code sections. See 8 C.F.R. § 1240.26, 8 U.S.C. § 1229c, 8 C.F.R. § 240.25. As the Reyes court noted:
Reyes, 907 F. Supp. 2d at 1078. The Ninth Circuit recently discussed the additional discretionary factors considered during an immigration proceeding:
United States v. Valdez-Novoa, 780 F.3d 906, 917 (9th Cir. 2015).
Judge Williams referenced Limones-Valles' many "positive equities." For example, he noted that Limones-Valles had a family, had come to the United States at a young age, had a work history, paid taxes, owned a home and had committed no criminal offenses other those related to his illegal status. Doc. No. 33 at 24-25. Additionally, Judge Williams noted that Limones-Valles could pay for his own travel and had not previously been granted voluntary departure. The only argument that Limones-Valles would not have been granted voluntary departure is that his Minnesota conviction demonstrated moral turpitude. As discussed above, however, this argument does not apply if voluntary removal is requested prior to the conclusion of immigration proceedings. See 8 U.S.C. § 1229c(a).
Apart from the Minnesota conviction, there are no "negative equities" that may have foreclosed Limones-Valles' voluntary departure. I agree with Judge Williams that it is far more likely than not that he would have been granted voluntary departure if he would have requested such relief. Thus, Limones-Valles suffered actual prejudice as a result of the fundamental procedural defects that occurred in 2001. Not only was he improperly classified as an aggravated felon, and thus subjected to expedited removal, but he was not informed in Spanish of his rights or of the nature of the proceedings. As a result, he was deprived of the opportunity to request an immigration hearing through which he likely would have been granted voluntary removal. Had he been granted voluntary removal in 2001, he would not have been subject to the expedited removal in 2004 upon which his present illegal reentry charge is premised. Accordingly, Limones-Valles has satisfied all three factors set forth in 8 U.S.C. § 1326(d). This requires dismissal of the illegal reentry charge against him.
For the foregoing reasons:
1. The Government's objection (Doc. No. 44) to the Report and Recommendation (Doc. No. 33) of United States Magistrate Judge C.J. Williams is
2. The Report and Recommendation (Doc. No. 33) is
3. Defendant's motion to dismiss the indictment (Doc. No. 12) is
4. The Clerk shall place Document No. 32-1 under seal.
