United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
Jose Ordoñez is facing trial for illegal reentry into
the United States after prior removal,  in violation of 8
U.S.C. §§ 1326(a) and (b)(2). Indictment, ECF No.
1. If convicted, he faces imprisonment of up to twenty years.
He has filed a Motion to Dismiss Indictment, ECF No. 32,
which the parties fully briefed, ECF Nos. 39 and 43. They
argued the Motion at a May 30, 2018 hearing, and I asked them
to submit supplemental briefing, ECF No. 50, which they have
done ECF Nos. 56, 61, 64, 67. All of their filings other than
the Government's Surreply have been under seal. I held a
second hearing on August 21, 2018. Because the orders under
which he was deported were the result of immigration court
procedures that were fundamentally unfair, and he suffered
prejudice as a result, Ordoñez's Motion is
April 15, 1997, when Pedro Jose Ordoñez, a citizen of
Honduras, was six years old, his mother brought him into the
United States illegally, to live in Arizona. Ordoñez
Decl. ¶¶ 1, 3, ECF No. 32-4. She “physically
abused [him] on a regular basis, ” both by
“beat[ing] him with an electrical cord, clothes hangers
or a broomstick” or a belt, and by “throwing
stuff at [him], like high heels and bottles.”
Id. ¶ 5. On one occasion, she burned his hand
by holding it to an electric burner, and when a “big
blister” that “was full of puss” formed on
his hand, she did not take him to a doctor to treat it; on
another occasion she “scratched [him] all over [his]
face.” Id. ¶¶ 12, 14. His mother was
arrested, convicted, and sent to jail for the abuse. During
that approximately one year period, Ordoñez lived with
his father, whom he had not met until 2001. He was not
“as physically abusive” (though far from a model
parent). Id. ¶¶ 4, 14-15. Six months after
his mother returned from incarceration, Ordoñez moved
to Florida with his father. Id. ¶ 16. His
father continued to hit him and, after a year, he agreed to
move back in with his mother in Arizona. Id.
¶¶ 17-18. This did not end well for Ordoñez.
She kicked him out of the house when he was fourteen, and he
dropped out of school and lived on the streets. Id.
¶¶ 19, 23, 27. By then, he was already having
suicidal thoughts. Id. ¶ 21.
he was homeless, he “was arrested several times . . .
for being out past curfew” and for petty theft.
Ordoñez Decl. ¶¶ 27-28. Then, on March 26,
2007, when Ordoñez was fifteen, his mother's
boyfriend accosted him outside his mother's house, yelled
at him, and “started pushing, punching and kicking
[him].” Id. ¶ 29. Ordoñez
“tried to walk away” three times without success,
after which Ordoñez “swung at him with [his]
knife.” Id. Ordoñez ran away, but the
boyfriend chased him and “knocked [him] down, ”
so Ordoñez “stabbed him in the stomach.”
Id. Ordoñez turned himself in and was
arrested and detained for 154 days. Aug. 29, 2007 Sentencing
Tr. 5-6, ECF No. 32-12; Sept. 22, 2009 Hr'g Tr. 11:20-23.
He was depressed and attempted suicide while detained, May 4,
2007 Incident Report, ECF No. 32-9, and he stated that he was
hearing voices, May 22, 2007 Supp. Rept., ECF No. 32-10.
Charged as an adult, he pled guilty at age sixteen to
aggravated assault on July 19, 2007 and was sentenced to an
additional four months imprisonment in Arizona state jail on
August 29, 2007. Aug. 29, 2007 Sentencing Tr. 5-6;
Arizona v. Ordoñez, (Maricopa Cty. Sup. Ct.
July 19, 2007),
=1. He attempted suicide again on December 29, 2007. Dec. 29,
2007 Incident Rept., ECF No. 32-13.
Immigration and Customs Enforcement (“ICE”) filed
an immigration detainer against Ordoñez on August 3,
2007. Def.'s Mem. 12. In early 2008, he was transferred
to immigration custody at Florence Detention Center, where,
according to Ordoñez, he was diagnosed with
Schizoaffective Disorder. Mental Health History & Recs.,
ECF No. 32-14.
first appeared in removal proceedings at age sixteen before
Immigration Judge Scott Jeffries in Florence, Arizona on
January 7, 2008. He was without an attorney or a guardian
counsel; he informed the court that he wanted to find an
attorney and challenge his removal. Jan. 7, 2008 Hr'g
Tr., ECF No. 32-16, at 1. At his second appearance ten days
later, he requested a bond hearing. Jan. 17, 2008 Hr'g
Tr., ECF No. 32-16, at 2.
January 22, 2008, Ordoñez appeared in immigration
court, still without counsel. Arizona Immigration Ct.
Hr'g Trs. 2, 4, ECF No. 32-16. The immigration judge
informed him that the Department of Homeland Security
(“DHS”) asserted that he “should be
deported because [he] came into this country illegally and
also because [he had] been convicted of a crime involving
moral turpitude.” Id. at 3. The immigration
judge noted that Ordoñez, who is not a U.S. citizen
and whose parents are not U.S. citizens, “was
brought” to the United States on about April 15, 1997
“[w]ithout documents.” Id. at 3-4. He
also noted that Ordoñez was “treated as an adult
in [Arizona] criminal court” and convicted of
aggravated assault, which the immigration judge stated was
“a crime involving moral turpitude.” Id.
at 4. Based on those facts, the immigration judge found that
“both charges of removal ha[d] been sustained by clear
and convincing evidence.” Id. Further, he
concluded that Ordoñez was not “eligible for any
relief because of [his] crime involving moral turpitude,
” and therefore he “order[ed] [him] removed from
the United States to Honduras.” Id. He asked
Ordoñez if he wanted to appeal the decision, and
Ordoñez declined. Id.
February 25, 2008, Ordoñez was removed to Honduras,
where he maintains he repeatedly was harassed and beaten by
the police. Ordoñez Decl. ¶ 35. He recalled:
After I had been in Honduras for about four to five months,
the local police started harassing me. The police arrested me
on two occasions and beat me up. They thought I was a gang
member and they thought I was involved with gang violence.
One of my uncles i[s] involved with the gangs so the police
thought that I am a gang member as well. They police also
picked me up on a few other occasions and put me into their
car and drove around. Every time they picked me up, the
police would beat me up. They punched me in the lungs, boxed
my ears, kicked me and hit me.
The police thought I was involved with gang activity and they
wanted a payment. They also thought that I had family in the
United States that could give me money so they wanted me to
make payments to them. Whenever they arrested me or picked me
up they would take anything I had on me of value, including
cell phone, jewelry, watch, or even my shoes. The police
threatened me that if I didn't make payments to the
police they would kill me. They would tell me to “watch
out for myself.”
I eventually decided that it was not safe for me to remain in
Honduras and I decided to return to the United States.
Id. ¶¶ 35-37.
attempted reentry into the United States on March 17, 2009,
at age seventeen. ICE arrested him at the border and placed
him in a juvenile detention facility in California. Warrant,
ECF No. 32-21. Rather than reinstating his prior deportation
order, on March 19, 2009, DHS issued a new Notice to Appear,
alleging one ground for deportation: reentry after prior
removal. ECF No. 32-27. Then, on May 18, 2009, DHS issued an
Amended Notice to Appear, alleging two grounds for
deportation: reentry after prior removal, in violation of
Immigration and Nationality Act § 212(a)(9)(C)(i)(II),
and unlawful presence in the United States, in violation of
§ 212(a)(6)(A)(i). ECF No. 32-28.
admission assessment, Ordoñez's mental health
needs were rated “severe” and psychiatric care
was recommended. Admis. Assess. 4, ECF No. 32-22. He was
transferred to an adult facility in June 2009, when he turned
eighteen. Immigration Ct. Docket, ECF No. 32-23. His records
from the two detention facilities state that Ordoñez
was on suicide watch, reported that he heard voices, and
sought mental health assistance. Mental Health Recs., ECF
Nos. 34-14, 32-25.
had pro bono counsel beginning with his first
hearing in April 2009. His attorneys helped him file a claim
for asylum, a claim under the Convention Against Torture, and
a U nonimmigrant visa (“U visa”) application,
based on his mother's abuse of him and his cooperation in
her investigation and prosecution. At bond hearings on
September 22 and 29, 2009, Immigration Judge Michael
Yamaguchi determined that Ordoñez was eligible for
release because his Arizona assault charge did not qualify as
a crime of violence, aggravated felony, or a conviction for
immigration purposes. Sept. 29, 2009 Hr'g Tr. 4:15-25.
Ordoñez was released on bond on February 3, 2010, in
the care of an acquaintance.
Ordoñez's immigration hearing on May 18, 2010, his
attorney asked for additional time because he had just filed
the U visa application. At the next immigration hearing, on
February 15, 2011, Ordoñez's attorney informed the
court that Ordoñez was found eligible for a U visa but
denied admissibility because of the 2007 aggravated assault
conviction. The next day, Ordoñez filed a request for
reconsideration of the decision denying him admissibility.
11, 2011, while out on bond, Ordoñez was convicted of
resisting, delaying, or obstructing a public officer, peace
officer, or EMT during the course of his or her official
duties, with regard to a December 25, 2010 incident; he was
sentenced to 110 days of imprisonment. Then, on October 21,
2011, Ordoñez was convicted of receipt of stolen
property and possession of a dangerous weapon. On June 3,
2012, he was sentenced to 16 months of imprisonment, and his
removal proceedings were administratively closed.
was released from criminal custody and taken into immigration
custody on January 9, 2012, and his removal proceedings were
reinstated. He appeared for an immigration hearing on
February 9, 2012, at which time his motion for
reconsideration of his U visa denial still was pending, as
well as his application for asylum and claim under the
Convention Against Torture. Unfortunately, his pro
bono attorney withdrew due to lack of funding. The
immigration judge told Ordoñez that he would
“set [his] case for a master calendar hearing on
February 14th.” Feb. 9, 2012 Hr'g Tr. 4.
appeared for a removal hearing on February 15, 2012; despite
the withdrawal of prior counsel, he had a pro bono
attorney present. Feb. 15, 2012 Hr'g Tr. 2:5-6.
Immigration Judge Yamaguchi noted that DHS was “not
arguing that [Ordoñez's] California conviction
[was] a ground for [his] deportation, ” such that
Ordoñez's appeal of that conviction was
immaterial. Id. at 6:2-5. Rather, DHS's claims
were that “after having been previously deported out of
Arizona, [he] came back illegally, ” and that,
“as a result, [Ordoñez was in the United States]
illegally.” Id. at 6:5-11. The immigration
judge informed Ordoñez that, to challenge his 2008
deportation order, he “would have to go back before the
Arizona [immigration] judge to reopen [his] case.”
Id. at 8:13-24.
speaking directly to the immigration judge and not through
counsel, asked about voluntary departure. Feb. 15, 2012
Hr'g Tr. 8:25-9:1. The immigration judge considered
Immigration and Nationality Act (“INA”) §
240 (8 U.S.C. § 1229a) and observed: “[H]e was not
previously branded voluntary departure and he doesn't
have an aggravated felony, so I guess he would be [eligible
for voluntary departure].” Id. at 9:3-16;
see also id. at 12:19-21 (noting that “he is
not statutorily ineligible”). The immigration judge
questioned Ordoñez about the “minimum
requirement[s]” for voluntary departure, a passport and
ability “to reimburse the Government for [his]
transportation back to Honduras.” Id. at
13:12-14:11. Ordoñez stated that he would “be
willing to . . . if the Government allowed [him] some
time.” Id. at 14:12-15. DHS opposed voluntary
departure, given Ordoñez's convictions.
Id. at 14:16-25. The immigration judge scheduled a
contested voluntary departure hearing for February 28, 2012
so that Ordoñez first could decide whether he wanted
to continue with his applications for relief or withdraw them
and request voluntary departure. Id. at 17:24-20:11.
appeared pro se on February 28, 2012 for a voluntary
departure hearing before Immigration Judge Yamaguchi. Feb.
28, 2012 Hr'g Tr. He asked about bail, the length of time
involved in completing his asylum proceeding, and the
implications of voluntary departure and deportation.
Id. at 3:13-4:13. The immigration judge explained
that Ordoñez was “going to have to give up
something, ” by either “withdraw[ing] that asylum
application before” the judge conducted the voluntary
departure hearing or “for[e]go[ing] voluntary departure
and [having the judge] set a hearing date for [his]
application for asylum.” Id. at 7:9-22. The
immigration judge told Ordoñez that it would take
three months to schedule an asylum hearing, and offered to do
so. But, in the interim, Ordoñez would remain
incarcerated. Significantly, the immigration judge also
advised him that, if he pursued voluntary departure and was
not “happy with the [judge's] decision, [he could]
always appeal.” Id. at 5:5-8. Ordoñez
initially said: “[Y]eah. I have to give it up [the
possibility of asylum following three more months of
incarceration]. It's - being incarcerated is not doing my
brain any good and my body nothing.” Id. at
7:23-25. He said he would “take [his] chances”
with regard to possible deportation, because he did not
“want to be incarcerated [any] more.”
Id. at 8:1-3, 18-19, 22. He stated that he
“fe[lt] like [he had] no choice.” Id. at
again, the immigration judge inquired about the
“minimum requirements” for voluntary departure.
Id. at 5:14-23. Stating that he had a Honduran
passport, Ordoñez asserted: “I don't have
the money right now to pay the Government for my flight. But
if I could work a way of repaying it . . . within a period of
time.” Id. at 5:16-6:7. Noting the January 2,
2008 deportation order, Judge Yamaguchi then concluded that
Ordoñez was “not eligible [for voluntary
departure] because [he] got a prior deportation” that
“disqualifie[d] him.” Feb. 28, 2012 Hr'g Tr.
9:11-11:1. Citing INA § 241(a)(5), codified at 8 U.S.C.
§ 1231, he said: “[T]he law says if you have been
previously deported [or been granted a voluntary departure],
you can't be granted voluntary departure.”
Id. at 11:14-12:12; see also Id. at
20:18-20 (“[U]nder 241(a)(5) I think because of that
prior deportation, you are precluded. Not unless you can
reopen that case, and I wasn't the judge who handled
immigration judge explained that, if Ordoñez pursued
voluntary departure but was not eligible due to the prior
deportation order, he would be deported, which would bar him
from reentering the United States for ten years. Id.
at 13:12-17:8. He advised Ordoñez that “the
safer way” was “to go to the merits” of his
asylum application, because the immigration judge did not
think Ordoñez could “get . . . voluntary
departure, not unless [he] reopen[ed] that other case out of
Arizona.” Id. at 16:7-10. Ordoñez
stated: “I can't think straight, ” and the
immigration judge reiterated that he thought that, instead of
a voluntary departure hearing, “the safer way to go
about this” was “to hear about why
[Ordoñez was] afraid to go back to Honduras.”
Id. at 17:9- 12. He stated that DHS could not
“hold [the California conviction] against
[Ordoñez] because it [was] on appeal.”
Id. at 17:13-25. The immigration judge informed
Ordoñez again that he did not “think [he was]
eligible for voluntary departure . . . because of
241(a)(5)” and “the only thing [he had] available
to [him was] this 589 [asylum application] that [he had] on
file about why [he was] afraid to go back to Honduras.”
Id. at 19:16-20. And, he advised him once again:
“[T]he only way you are going to get out of
incarceration now, it is either you are going to be deported
or you are going to be granted withholding about your fear of
going back to Honduras.” Id. at 20:1-4.
the immigration judge's repeated observations that
Ordoñez was not eligible for voluntary departure and
his repeated advice that Ordoñez should pursue asylum
even though his hearing would not be for another three
months, Ordoñez stated that he was “afraid of
being incarcerated, ” acknowledged (resignedly) that
“there's absolutely no way of getting the voluntary
departure, ” and then chose to be deported because he
did not “want to be incarcerated [any] more.”
Id. at 19:24-23:7. But then, when the immigration
judge stated that (contrary to his prior advice)
Ordoñez would be waiving his right to appeal the
deportation order, and that he had reached “the end of
the proceedings, ” 25:24-26:17, Ordoñez asked
again about asylum, apparently not quite as ready to withdraw
his asylum application if he also had to waive his appeal
[ORDOÑEZ]: You need evidence to prove that; right?
That is going to --
THE COURT: Not me. You. You need evidence.
[ORDOÑEZ]: Right. I mean -- of course, I would need
evidence to prove that; right?
THE COURT: Correct.
[ORDOÑEZ]: See, I don't have any evidence.
Id. at 27:13-20. Based on his exchange with the
immigration judge, Ordoñez understood that to pursue
his asylum claim he would need “evidence.” But,
what he clearly did not understand (because the immigration
judge did not explain this to him) was that
“evidence” could include his own
testimony. Believing that he lacked the evidence to succeed,
a defeated Ordoñez withdrew his asylum application.
Id. at 27:21-22.
attorney representing DHS then became concerned that, in
light of Ordoñez's many questions, the deportation
order might not be “rock solid, ” and asked if
Ordoñez should have additional time to seek legal
This gentleman is asking Your Honor so many questions that
have so many different variable answers depending on any of
these facts. The Department is raising this concern because I
want to make sure that what the Respondent is asking of Your
Honor today is what he really wants to do and that he
doesn't want to have time to go ask a lawyer all of these
questions that he has been asking . . . .
Id. at 32:5-11. The immigration judge asked
Ordoñez if he wanted “to go talk to a lawyer,
” id. at 32:21, and Ordoñez responded:
No, I understand what is going on. I have to ask the
questions that I have to . . . . I don't know the law.
And that is why I thought I could ask you. . . .
I understand what is going on. It is a valid thing. I am
giving up my right [to pursue asylum]. I want to be deported.
I don't want to be incarcerated [any] more. . . . I wish
it wasn't this way . . . . I don't [have] the funds
to fight it anymore and the will, the power, . . . the
Id. at 32:23-33:15. And so, Ordoñez threw in
the towel. He agreed to abandon his asylum claim and right to
appeal, and agreed to be deported.
immigration judge found “by clear and convincing
evidence the allegation against Respondent have [sic] been
sustained. That is in the notice to appear in the I-261. . .
. The Court finds the Respondent knowingly and voluntarily
withdrew his app 589.” Id. at 33:18-22. The
immigration judge offered again “to give
[Ordoñez] more time if [he] want[ed] to go talk to a
lawyer or just to make sure everything [he] told [him] is
correct, or that there may be some other avenues that [the
judge] just [did not] know about, ” but Ordoñez
said: “No, I am fine.” Id. at
33:24-34:5. On March 22, 2012 Ordoñez was deported to
Honduras. He reentered the United States on April 30, 2017,
and ICE took him into custody once again and issued a notice
of reinstatement of the 2008 deportation order.
7, 2017, Ordoñez was indicted and charged with one
count of illegal reentry into the United States after prior
removal, in violation of 8 U.S.C. §§ 1326(a) and
(b)(2). Indictment, ECF No. 1. Specifically, the indictment
charges that Ordoñez,
an alien who previously had been deported and removed, after
having been convicted of an aggravated felony, knowingly
entered and was found in the United States of America, the
said defendant having not obtained the express consent of the
Attorney General of the United States or his successor, the
Secretary for Homeland Security (Title 6, United States Code,