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United States v. Ordonez

United States District Court, D. Maryland

August 31, 2018



          Paul W. Grimm United States District Judge.

         Pedro Jose Ordoñez is facing trial for illegal reentry into the United States after prior removal, [1] 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 granted.


         On 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.

         While 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.

         Meanwhile, 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 Immigration Proceeding

         Ordoñez 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.

         On 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.

         Return to Honduras

         On 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.

         Second Immigration Proceeding

         Ordoñez 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.

         In his 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.

         Ordoñez 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.

         At 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.

         On July 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.

         Ordoñez 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.

         Ordoñez 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.

         Eligibility for Relief

         Ordoñez, 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.

         Ordoñez 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 8:19.

         Once 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 that.”).

         The 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.

         Despite 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 rights:

[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.

         The attorney representing DHS then became concerned that, in light of Ordoñez's many questions, the deportation order might not be “rock solid, ”[2] and asked if Ordoñez should have additional time to seek legal advice:

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 strain, mentality.

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.

         The 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.

         Criminal Prosecution

         On June 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, Sections ...

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