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United States v. Huazo-Garcia

United States District Court, E.D. Washington

May 21, 2018



          SALVADOR MENDOZA, JR. United States District Judge.

         Before the Court is Defendant Ismael Huazo-Garcia's Motion to Dismiss Indictment, ECF No. 28.[1], [2] Defendant is charged with one count of being an alien in the United States after deportation under 8 U.S.C. § 1326. ECF No. 17. “A defendant charged under § 1326 has a due process right ‘to collaterally attack his removal order because the removal order serves as a predicate element of his conviction.'” United States v. Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (quoting United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004)). Defendant argues that the charge against him must be dismissed because the underlying removal order on which the charge is based was unlawful. ECF No. 28 at 1-2. Because Huazo-Garcia was not permitted to review his sworn statement in the underlying expedited removal proceedings, those proceedings violated his right to due process. And because Huazo-Garcia has demonstrated that he was prejudiced by this violation, the indictment in this case must be dismissed.


         A. Personal history

         Defendant Ismael Huazo-Garcia was born in Mexico and moved to Salinas, California when he was 6 years old. Huazo-Garcia lived with his stepfather, Ruben Mendez, who is a legal resident, and three of his siblings. He attended school in Salinas through ninth grade. With the exception of a brief move to Oxnard, California, when he was about 16, Huazo-Garcia continued to reside in Salinas until he moved to Washington State with his partner Cozette in 2017. He is now 24 years old.

         Huazo-Garcia remains in contact with his step father, the three siblings he grew up with, and four other siblings, all of whom live in the United States. He is in a long-term relationship with a partner, Cozette, who has had legal status since 2012. He states that he does not have a close relationship with any family in Mexico.

         Huazo-Garcia speaks, reads, and writes in Spanish, and has very limited English.

         B. Immigration history

         Huazo-Garcia remembers briefly traveling to Mexico with a cousin in December 2009, when he was 13 years old. Huazo-Garcia traveled to Mexico again in 2013.[3] As he was returning, he was taken into custody by border patrol. He honestly identified himself and admitted that he did not have legal status.

         Border Patrol agent Raul Perez conducted expedited removal proceedings on January 22, 2013, at which Huazo-Garcia initialed a “Record of Sworn Statement in Proceedings” and signed a “Jurat for Record of Sworn Statement in Proceedings.” These documents, which are in English, purport to advise Huazo-Garcia that (1) he does not appear to be admissible to the United States; (2) he “may be immediately removed from this country, and if so, . . . may be barred from reentry for a period of 5 years or longer”; and (3) this may be his only opportunity to present information. The documents also contain a transcript of an interview by Perez, in which Huazo-Garcia purportedly answered that he understood his rights and admitted to being born in Mexico and to entering the United States unlawfully.

         Huazo-Garcia states that Perez told him to sign documents and explained only that he could not be released to return to Mexico until he signed them. Huazo-Garcia asserts that Perez did not explain the documents, give him the opportunity to review the documents, read the documents to him in Spanish or English, or ask if he wanted to have the documents read to him. Huazo-Garcia further asserts that no one explained the consequences of an expedited removal to him, i.e., that he would be barred from reentry for five years and that the removal could be the basis for felony prosecution. He also states that if he had known he could ask to withdraw his application to be admitted to the United States and remain eligible to apply for legal entry, he would have done so.

         Huazo-Garcia was removed on January 22, 2013, and prohibited from reentering the United States for five years. Perez states in his narrative description of the expedited removal that he read and explained the documents to Huaz-Garcia, and that Huazo-Garcia acknowledged understanding his rights and agreed to give a sworn statement.

         In a statement prepared in May 2018, Perez explains the process he follows in expedited removal proceedings, including that:

As part of my processing duties, I provide the alien the opportunity to review his/her case. I also make sure he/she understands what they are being charged with, either administratively or criminally. In addition to explaining all right [sic] and forms, I make sure ...

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