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United States v. Roque-Cerda

United States District Court, E.D. Michigan, Southern Division

January 3, 2020

United States of America, Plaintiff,
Ivan Roque-Cerda, Defendant.

          R. Steven Whalen Mag. Judge


          JUDITH E. LEVY United States District Judge

         Defendant Ivan Roque-Cerda is charged with unlawful reentry under 8 U.S.C. § 1326(a). On August 27, 2019, he filed a Motion to Dismiss Information in which he challenges the validity of his expedited removal order from 2006 that serves as the basis for his § 1326(a) charge. (ECF No. 15.) Roque-Cerda relies on 8 U.S.C. § 1326(d) to collaterally attack that order. He contends that the order is fundamentally unfair because three defects in his 2006 expedited removal proceedings constitute due process violations and as a result he experienced prejudice. On October 30, 2019 and November 26, 2019, the Court held hearings, took testimony, and heard oral argument on Roque-Cerda's motion. For the reasons set forth below, Roque-Cerda has not demonstrated that the expedited removal proceedings violated his due process rights in such a way that caused prejudice. His motion to dismiss is therefore denied.

         I. Background

         Roque-Cerda is thirty-six years old. He is a citizen of Mexico. (ECF No. 19, PageID.47.) Prior to his arrest by Customs and Border Protection (CBP) agents in June 2019, Roque-Cerda resided in Michigan with his wife and five children. His wife is a Lawful Permanent Resident; in 2006, she filed a petition under INA § 203(a)(2)(A) for a visa for Roque-Cerda as the spouse of an LPR. (ECF No.15-3, PageID.37.). All five of Roque-Cerda's children are United States citizens. (ECF No. 17, PageID.40.)

         Over the past sixteen years, Roque-Cerda has encountered U.S. immigration officials at least six times. This case involves two of those encounters: the expedited removal proceedings from 2006 and the 2019 arrest that led to the charge in this case.

         On September 29, 2006, Roque-Cerda was discovered at the San Ysidro, California Port of Entry attempting to cross the border concealed in the back of a vehicle. (ECF No. 15, PageID.24.) On September 30, 2006, he underwent expedited removal proceedings. Id. CBP Officer Michael Tuttle conducted the proceedings and acted as the language interpreter. Id. Officer Tuttle questioned Roque-Cerda and prepared a two-page Record of Sworn Statement and a one-page Jurat for Record of Sworn Statement. Id. Roque-Cerda's name appears on both documents. Id. The Record of Sworn Statement includes a series of questions about Roque-Cerda's presence in the United States:

Q: On what day did you attempt to come enter [sic] the United States?
A: Last night
Q: How did you attempt to enter the United States?
A: I was hiding in a vehicle
Q: Did you present any document to the officer in order to enter the United States?
A: No
Q: How much did you pay or were going to pay to be brought across the border in this manner?
A: My brother told me he was going to pay about $200.00.

(ECF No. 15-1, PageID.35.) Roque-Cerda then stated that he reentered the United States to find work and rejoin his family in Pontiac, Michigan. Id.

         The one-page Jurat for Record of Sworn Statement indicates that Roque-Cerda did not wish to add anything to the Sworn Statement.

Q: Do you have any questions or is there anything else you would like to add?
A: No.

(ECF No. 15-2, PageID.36.)

         Officer Tuttle served Roque-Cerda with a Notice and Order of Expedited Removal pursuant to 8 U.S.C. § 1225(b). (ECF No. 19-2, PageID.66.) Roque-Cerda received a “Notice to Alien Ordered Removed/Departure Verification, ” which he signed and finger-printed. (ECF No. 19-3, PageID.67.) On September 30, 2006, Roque-Cerda returned to Mexico on foot. (ECF No. 19, PageID.48.)

         On June 6, 2019, ICE agents arrested Roque-Cerda in Macomb, Michigan after a brief foot-chase. (ECF No. 19, PageID.49.) On June 17, 2019, Roque-Cerda was charged with unlawful re-entry under 8 U.S.C. § 1326. (ECF No. 1.) On June 24, 2019, the United States filed the Information in this case. (ECF No. 9.) The Information lists Roque-Cerda's September 30, 2006 expedited removal order as the predicate immigration offense satisfying the elements of 8 U.S.C. § 1326(a). (Id. at PageID.13.)

         On August 27, 2019, Roque-Cerda moved to dismiss the Information. (ECF No. 15.)

         II. Legal Standard

         Federal Rule of Criminal Procedure 12(b)(1) permits parties to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). A collateral attack under 8 U.S.C. § 1326(d) is such an issue. See United States v. Garcia-Echaverria, 374 F.3d 440, 445 (6th Cir. 2004).

         A noncitizen charged with illegal reentry under 8 U.S.C. 1326(a) may only challenge an underlying removal order if they can show that “(1) the [noncitizen] 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 [noncitizen] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” United States v. Estrada, 876 F.3d 885, 887 (6th Cir. 2017) (quoting § 1326(d)). As the Sixth Circuit explains, “[t]o prove the fundamental unfairness of an underlying deportation order, a defendant must show both a due process violation emanating from defects in the underlying deportation proceeding and resulting prejudice.” Id. The noncitizen bears the burden of demonstrating a due process violation and prejudice. Id.

         III. ...

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