Case: 18-50492          Document: 00514948510              Page: 1      Date Filed: 05/08/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                          United States Court of Appeals
                                                                                                   Fifth Circuit

                                                                                                 FILED
                                            No. 18-50492                                      May 8, 2019
                                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                                        Clerk


                 Plaintiff - Appellee

v.

BLANCA NIEVE VASQUEZ-HERNANDEZ,

                  Defendant - Appellant
---------------------------------------------------------------------------------------
UNITED STATES OF AMERICA,

                 Plaintiff - Appellee

v.

ELBA LUZ DOMINGUEZ-PORTILLO

                  Defendant - Appellant
--------------------------------------------------------------------------------------
UNITED STATES OF AMERICA,

                 Plaintiff - Appellee

v.

MAYNOR ALONSO CLAUDINO LOPEZ,

                  Defendant - Appellant
--------------------------------------------------------------------------------------
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                                            No. 18-50492
UNITED STATES OF AMERICA,

                  Plaintiff - Appellee

v.

JOSE FRANCIS YANES-MANCIA,

                  Defendant - Appellant
---------------------------------------------------------------------------------------
UNITED STATES OF AMERICA,

                  Plaintiff - Appellee

v.

NATIVIDAD ZAVALA-ZAVALA,

                  Defendant - Appellant



                      Appeal from the United States District Court
                           for the Western District of Texas


Before KING, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
        In unrelated incidents between October 21, 2017 and October 23, 2017,
Appellants Blanca Nieve Vasquez-Hernandez, Elba Luz Dominguez-Portillo,
Maynor Alonso Claudino-Lopez, Jose Francis Yanes-Mancia, and Natividad
Zavala-Zavala were each apprehended by Customs and Border Protection
(CBP) soon after entering the United States from Mexico. Appellants, citizens
of Honduras and El Salvador, were each accompanied by a minor child (in one
appellant’s case, a grandchild). 1 Appellants stated to CBP during initial


        1   The children ranged between 7 and 16 years old.
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                                     No. 18-50492
processing that they feared persecution in their home countries. They were
arrested, charged with misdemeanor improper entry under 8 U.S.C. § 1325(a),
and detained in El Paso. The government did not detain the children with their
parents, but instead transferred the children to the custody of the Office of
Refuge Resettlement (ORR) in the U.S. Department of Health and Human
Services. 2
      Before July 2017, children were typically only referred to ORR when they
entered without a parent or guardian. U.S. DEP’T HEALTH HUMAN SERVS.
OFFICE OF INSPECTOR GENERAL, Separated Children Placed in Office of Refugee
Resettlement Care, 3 (Jan. 2019), https://oig.hhs.gov/oei/reports/oei-BL-18-
00511.pdf. Before July 2017, “some children [were] referred to ORR after being
separated by DHS from a parent . . . with whom the child arrived. Historically,
these separations were rare and occurred because of circumstances such as the
parent’s medical emergency or a determination that the parent was a threat to
the child’s safety.” 

July and November 2017, the El Paso
sector of CBP “implemented new policies that resulted in 281 individuals in
families being separated.” 

during this period that Appellants arrived
with their children. Appellants’ immigration forms indicate that they were
separated from their children not because of a medical emergency or safety
concern, but because of the parents’ impending prosecutions.
      A magistrate judge convicted and sentenced Appellants after bench
trials where Appellants stipulated to facts establishing all the elements of a §




      2   See 8 U.S.C. § 1232(b)(3) (“Except in the case of exceptional circumstances, any
[federal] department or agency . . . that has an unaccompanied alien child in custody shall
transfer the custody of such child to the Secretary of Health and Human Services.”). ORR is
tasked with “coordinating and implementing the care and placement of unaccompanied alien
children who are in Federal custody by reason of their immigration status.” 6 U.S.C. §
279(b)(1). As charged by statute, ORR has developed and implemented its own policies for
the care, placement, and release of children.
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                                    No. 18-50492
1325(a) offense. The district court affirmed. In this consolidated appeal,
Appellants argue that (1) they should not have been criminally prosecuted
because they sought asylum, and (2) being separated from their children
rendered their convictions constitutionally infirm.
      Appellants have never disputed the sufficiency of the government’s
evidence. As the district court explained in its careful and detailed order
affirming the convictions, “the soundness of the government’s policies
regarding arriving asylum seekers and their minor children is not before the
Court in this appeal.” We agree and affirm.
                                           I
      Appellants made their initial appearances before the same magistrate,
who appointed a Federal Public Defender to represent them. On November 7,
2017, Appellants filed a consolidated motion to dismiss the criminal
complaints. 3 They contended that the § 1325(a) charges were premature
because their asylum claims had not yet been processed. They also argued that
separation from their children would render any guilty plea involuntary, and
constituted “outrageous” conduct requiring dismissal of the complaints.
Appellants confirmed that they were “not seeking that the court analyzes [sic]
the strength of the government’s § 1325 cases against them. . . [T]he parent-
defendants’ guilt or innocence under § 1325 is not at issue on this motion.” On
November 9, 2017, the government offered Appellants plea agreements with
sentences of time served. Appellants did not accept.
      The magistrate set a hearing on the motion to dismiss for November 27,
2017, and set bench trials for December 1, 2017. 4 At the hearing on the motion


      3  The parties agreed that consolidation of the motion to dismiss was appropriate
because Appellants were similarly situated and the relevant factual circumstances were
straightforward.
       4 The magistrate’s jurisdiction over Appellants’ misdemeanor proceedings rested on

18 U.S.C. § 3401(a).
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to dismiss, Appellants raised two new arguments. First, they argued that
because their children were material witnesses, going to trial without the
children present would violate due process. Second, Appellants contended that
conviction and deportation would unconstitutionally terminate their parental
rights. At the end of the hearing, the magistrate denied the motion to dismiss. 5
       At their individual bench trials, Appellants all stipulated to facts and
evidence establishing all the elements of a § 1325(a) offense. Appellants did
not testify and did not present any affirmative defenses. The magistrate found
Appellants guilty and sentenced each to one year of non-reporting probation.
Appellants moved for reconsideration, which the magistrate denied on January
12, 2018.
      Appellants’ appeals to the district court were consolidated. While the
appeal was pending, four of the five (all but Vasquez-Hernandez) were found
inadmissible under 8 U.S.C. § 1182 and deported, apparently without their
children. Vasquez-Hernandez was released on immigration bond on February
21, 2018. On June 11, 2018, the district court affirmed the convictions. In a
detailed order, the district court examined Appellants’ arguments and found
no basis for reversing their convictions. This timely appeal followed.
                                           II
      This appeal concerns the district court’s affirmance of the misdemeanor
convictions and sentences imposed by the magistrate. We therefore “review the
magistrate judge’s findings of fact for clear error and conclusions of law de
novo.” United States v. Hollingsworth, 

, 558 (5th Cir. 2015).
      Appellants seek to challenge their convictions on six grounds: (1)
separation from their children was pre-trial punishment that violated due



      5The magistrate issued an opinion explaining the denial of the motion to dismiss on
January 5, 2018.
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                                   No. 18-50492
process; (2) the convictions violated the Eighth Amendment because they
resulted in Appellants’ deportation and continued separation from their
children; (3) separation was outrageous government conduct and the criminal
complaints should have been dismissed; (4) separation violated Appellants’
rights to exculpatory evidence; (5) separation deprived Appellants of a fair
trial; and (6) separation violated Appellants’ rights against self-incrimination.
None of these arguments is persuasive.
      A. Pre-trial punishment
      Appellants say that because they “were bona fide asylum seekers,” it was
impermissible pre-trial punishment for the government to detain them
pending criminal prosecution and thereby separate them from their children.
Yet Appellants do not challenge the government’s contention that once the
parents were arrested and detained in adult facilities, their children became
“unaccompanied” for purposes of § 1232(b)(3). See 6 U.S.C. § 279(g)(2) (defining
“unaccompanied alien child” in relevant part as a child under 18 years of age
with “no lawful immigration status,” for whom “no parent or legal guardian in
the United States is available to provide care and physical custody”).
      Instead, Appellants respond that the government’s decision to initiate
criminal proceedings was unjustifiable because they were “bona fide asylum
seekers.” Relying on 8 U.S.C. § 1225(b)(1)(A)(ii), Appellants assert that they
had rights to an asylum hearing before any criminal proceedings could be
initiated, and that if they had been granted asylum, they would have been
immunized from prosecution for improper entry. Section 1225(b)(1)(A)(ii)
provides, “If an immigration officer determines that an alien . . . is inadmissible
. . . and the alien indicates either an intention to apply for asylum under section
1158 of this title or a fear of persecution, the officer shall refer the alien for an
interview by an asylum officer.” (emphasis added). Emphasizing that “shall”
is mandatory, Appellants conclude that “[s]eparating Appellants from their
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                                 No. 18-50492
minor children was a restriction or condition not reasonably related to
Congressional goals regarding asylum law and it punished Appellants.”
      Nothing in § 1225(b)(1)(A)(ii) prevents the government from initiating a
criminal prosecution before or even during the mandated asylum process. Nor
have Appellants shown that qualifying for asylum would be relevant to
whether they improperly entered, since § 1325(a) applies to “[a]ny alien” who
“enters or attempts to enter the United States at any time or place other than
as designated by immigration officers.” Appellants stipulated that they were
aliens and entered the United States at a place that was not a port of entry.
Qualifying for asylum under 8 U.S.C. § 1158 would not change Appellants’
alien status. See 8 U.S.C. § 1101(a)(3) (defining “alien” as “any person not a
citizen or national of the United States”). Indeed, only “aliens” can apply for
asylum under 8 U.S.C. § 1158(a)(1).
      Using similar logic, this court in an unpublished decision concluded that
the government’s failure to refer a defendant to an asylum officer for a
reasonable fear determination was not grounds for dismissing his indictment
for illegal reentry. United States v. Brizuela, 605 F. App’x 464, 465 (5th Cir.
2015). In Brizuela, the court concluded that even if the government had failed
to comply with a regulation mandating a reasonable fear interview,
      such a violation has no relevance to the prosecution for illegal
      reentry. No legal authority mandates a pause to criminal
      proceedings until the reasonable-fear interview takes place. . . .
      [The regulation] does not restrict the time to bring criminal
      charges relative to the time of referral, nor does it prescribe some
      collateral impact on criminal proceedings if the government fails
      to follow the regulation. And the outcome of those civil proceedings
      would have no effect on Brizuela’s criminal case. . . . With no legal
      authority requiring a halt on a separate track of the legal system,
      dismissing the indictment on this basis would have been error.

Brizuela’s reasoning is persuasive and directly applicable here.

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                                  No. 18-50492
      B. Eighth Amendment
      Appellants argue that being deported without their children has resulted
in “permanent separation” amounting to cruel and unusual punishment. But
on this record, deportation was not a punishment imposed or even caused by
Appellants’ § 1325(a) misdemeanor convictions. Rather, the four deported
appellants were found inadmissible during post-conviction civil immigration
proceedings.
      To be sure, the Supreme Court has warned that deportation in the civil
context sometimes cannot be disentangled from criminal punishment. In
Padilla v. Kentucky, 

, 365 (2010), the Court found that the Sixth
Amendment’s guarantee of effective assistance of counsel requires, at a
minimum, criminal counsel to “give correct advice” “when the deportation
consequence [of a conviction] is truly clear.” 

The Court reasoned
that even though deportation “is not, in a strict sense, a criminal sanction,”
and “removal proceedings are civil in nature,” “deportation is nevertheless
intimately related to the criminal process. . . . [I]mportantly, recent changes in
our immigration law have made removal nearly an automatic result for a broad
class of noncitizen offenders.” 

Padilla was specifically concerned
with cases where deportation is “a consequence of a criminal conviction.” 

      Appellants frame their appeal as though they were deported pursuant to
criminal proceedings, but they have not shown that deportation was caused by
their § 1325(a) convictions. Appellants do not argue, for instance, that their
convictions rendered them inadmissible under Section 212. See, e.g., 8 U.S.C.
1158(b)(2). Nor do Appellants argue that their § 1325(a) convictions make it




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                                    No. 18-50492
more difficult for them to locate and regain custody of their children. Their
Eighth Amendment claims fail.
      C. Outrageous government conduct
      Appellants contend that family separation was “so outrageous that due
process principles would absolutely bar the government from invoking judicial
process to obtain a conviction.” United States v. Russell, 

, 431–32
(1973); see Rochin v. California, 

, 172 (1952) (holding that “forcible
extraction” of defendant’s stomach to recover narcotics “shock[ed] the
conscience” and was a method “too close to the rack and the screw to permit of
constitutional differentiation”).
      “The standard for proving outrageous governmental conduct is
extremely demanding.” United States v. Sandlin, 

, 758 (5th Cir.
2009). We have “declined to find outrageous conduct where the Government
failed to disclose that the defendant’s signature on a particular document was
forged; engaged in entrapment; or abducted the defendant from his home
country to circumvent extradition proceedings.”        

(citing United
States v. Mauskar, 

, 231–32 (5th Cir. 2009), Stokes v. Gann, 

, 485 (5th Cir. 2007), and United States v. Chapa–Garza, 

,
121 (5th Cir. 1995)); see also United States v. Wilson, 

, 411 (5th
Cir. 1984) (declining to find outrageous conduct where the government played
a “nonviolent trick” to get defendant into custody). Appellants do not cite any
Fifth Circuit case where an indictment was dismissed or a conviction reversed
based on the outrageous conduct doctrine. Cf. United States v. Nolan-Cooper,

, 229–30 (3d Cir. 1998) (concluding that “the viability of the
doctrine is hanging by a thread” and that “courts have rejected its application
with almost monotonous regularity”) (citations omitted).
      As explained above, Appellants have not challenged the government’s
justification for detaining them during criminal prosecution and pending trial.
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Further, as discussed below, the record does not suggest that separating the
children from Appellants aided the government in obtaining convictions. We
therefore will not reverse Appellants’ convictions based on the outrageous
government conduct doctrine.
       D. Right of access to evidence
       Appellants argue that the government refused to disclose the children’s
location and that this refusal violated their rights in “what might loosely be
called the area of constitutionally guaranteed access to evidence.” United
States v. Valenzuela–Bernal, 

, 867 (1982).
       First, Appellants argue that the government violated Brady v.
Maryland, 

, 87 (1963), because the children could have testified as
to their parents’ well-founded fear of returning home to “horrible violence in
their Central American countries.” They contend that such testimony would
have been relevant to a duress defense. 6
       Brady requires a showing that “(1) the evidence at issue was favorable
to the accused, either because it was exculpatory or impeaching; (2) the
evidence was suppressed by the prosecution; and (3) the evidence was
material.” United States v. Cessa, 

, 128 (5th Cir. 2017) (quotation
omitted). The materiality requirement applies even where the witness is
unavailable      to   the   defendant.      

(unavailability “may well support a relaxation of the specificity required in
showing materiality” but does not “afford[] the basis for wholly dispensing with
such a showing”). The government “bears no responsibility to direct the defense
toward potentially exculpatory evidence that is either known to the defendant



       6 Appellants did not actually raise defenses of duress below. In moving for judgments
of acquittal, they argued only that the children were key material witnesses to a potential
duress defense. They declined to testify themselves on duress, arguing that doing so “forces
the defendants to take the stand in order to establish their defense and so there is prejudice.”
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or that could be discovered through the exercise of reasonable diligence.”
United States v. Sipe, 

, 478 (5th Cir. 2004); see also Lawrence v.
Lensing, 

, 257 (5th Cir. 1994) (“Brady claims involve ‘the discovery,
after trial of information which had been known to the prosecution but
unknown to the defense.’”) (quoting United States v. Agurs, 

, 103
(1976)).
      Here, Appellants knew what the children would have testified to. Yet, as
the district court observed, Appellants “made [no] effort to call the children as
witnesses” during their bench trials, did not “request[] that the children be
made available so they could be interviewed by counsel,” and did not “attempt[]
to subpoena them.” Nor did Appellants request a continuance of trial pending
their ability to obtain the children’s testimony. There was therefore no Brady
violation. See 

(no Brady claim where evidence was
disclosed at trial and counsel opted not to seek a recess or continuance).
      Moreover, the children’s testimony would not have been material to a
duress defense. Testimony about conditions in Honduras and El Salvador
would not have established an affirmative defense of duress, which requires,
among other elements, a “present, imminent, and impending threat of such a
nature as to induce a well-grounded apprehension of death or serious bodily
injury” and “no reasonable legal alternative to violating the law.” United States
v. Posada-Rios, 

, 873 (5th Cir. 1998) (quotations omitted). The
district court correctly reasoned that Appellants’ proposed duress defense was
“rooted in the danger they faced in their home countries, not at the time of
crossing the border into the United States. Nothing suggests that those
dangers followed them to the border,” and there was “no basis to believe that
Appellants did not have a reasonable legal alternative to crossing the border
into the United States at an undesignated place.” See also United States v.
Ramirez-Chavez, 596 F. App’x 290, 293 (5th Cir. 2015) (no duress defense to
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                                 No. 18-50492
improper entry where defendant was kidnapped, beaten, and ransomed and
defendant waded across the Rio Grande into the United States “several
minutes” after escaping from captivity).
      Second, Appellants contend that the government suppressed the
children’s testimony in bad faith, violating their due process rights under
California v. Trombetta, 

(1984). This argument is also foreclosed
by the fact that Appellants took no steps to secure the children’s presence at
trial. Even so, we note that Appellants misread Trombetta. There, the Court
examined “the government’s duty to take affirmative steps to preserve evidence
on behalf of criminal defendants,” evidence capable of being “destroyed through
prosecutorial neglect or oversight.” 

(emphasis added). In other
words, Trombetta dealt with the government’s duties to preserve physical
evidence—in Trombetta’s case, breath samples taken prior to his arrest and
conviction for drunk driving. The children’s testimony was not physical
evidence capable of being destroyed by the government.
      E. Fair trial
      Appellants argue that they were deprived of a fair trial because their
children “could have testified to corroborate ‘credible fear claims’ that
prompted Appellants to flee from their countries.” The fair trial claim simply
repackages the Brady claim and fails for the same reasons.
      F. Self-incrimination
      Finally, Appellants assert that the government impermissibly burdened
their right to not testify at one’s own criminal trial. See Brooks v. Tennessee,

, 610–11 (1972). They argue that family separation was a coercive
practice that pressured Appellants to testify as to duress, and thereby
incriminate themselves.
      The self-incrimination claim fails because, as with the Brady claim,
nothing in the record suggests that the government prevented the children
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                                No. 18-50492
from testifying. Although the prosecution did not disclose where the children
were located, Appellants made no effort to subpoena the children as witnesses,
did not seek alternate testimony, and did not request a continuance. Nothing
in the record indicates that the government exerted undue pressure on
Appellants to testify, whether intentionally or through a policy of family
separation.
                                     III
      For the foregoing reasons, we AFFIRM.




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