United States District Court, E.D. Washington
ORDER DISMISSING INDICTMENT U.S. MARSHALS ACTION
SALVADOR MENDOZA, JR. United States District Judge.
the Court is Defendant Ismael Huazo-Garcia's Motion to
Dismiss Indictment, ECF No. 28.,  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.
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.
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.
speaks, reads, and writes in Spanish, and has very limited
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. 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.
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.
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.
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.
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 ...