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United States v. Tamayo-Baez

United States District Court, N.D. Iowa, Central Division

March 4, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
ISMAEL TAMAYO-BAEZ, Defendant.

ORDER

LINDA R. READE, Chief District Judge.

I. INTRODUCTION

The matter before the court is Defendant Ismael Tamayo-Baez's "Motion to Collaterally Attack Prior Order of Removal" ("Motion") (docket no. 17).

II. RELEVANT PROCEDURAL HISTORY

On October 28, 2014, the grand jury returned a one-count Indictment (docket no. 2) against Defendant. The Indictment charged Defendant with illegally re-entering the United States after having been removed in violation of 8 U.S.C. ยง 1326(a). On December 3, 2014, Defendant filed the Motion. In the Motion, Defendant requested an evidentiary hearing. On December 12, 2014, the government filed a Resistance (docket no. 20). On February 4, 2015, the court held an evidentiary hearing ("Hearing"). See February 5, 2015 Minute Entry (docket no. 47). The time for Defendant to file a reply brief has run. See LCrR 47(a) ("Local Rule 7 governs motion procedure in criminal cases...."); LR 7(g) ("[T]he moving party may, within 7 days after a resistance to a motion is served, file a reply brief...."). Thus, the Motion is fully submitted and ready for decision.

III. RELEVANT FACTUAL BACKGROUND [1]

The United States Border Patrol encountered Defendant on April 6, 1997, April 13, 1997, April 19, 1997, April 21, 1997 and April 23, 1997. Each time Defendant received a voluntary return to Mexico.

On February 24, 2004, Defendant was convicted of domestic abuse assault and two counts of making false licenses in the Iowa District Court for Franklin County, and sentenced to 104 days' imprisonment on each count.

On February 26, 2004, Defendant received a Notice of Rights and Request for Disposition ("Notice of Rights") (Exhibit 1) printed in Spanish. The Notice of Rights informed Defendant that he was arrested for being in the United States illegally, and that he had a "right to a hearing before the Immigration Court to determine whether [he] may remain in the United States." Id. The Notice of Rights also informed Defendant of several other rights. First, the Notice of Rights stated that Defendant had "the right to contact an attorney or other legal representative to represent [Defendant] at [his] hearings, or to answer any questions regarding [his] legal rights in the United States." Id. Second, the Notice of Rights stated that if Defendant requested a hearing he could be detained or released on bond pending the hearing. Id. Finally, the Notice of Rights stated that Defendant could request to be returned to his country as soon as possible, without a hearing. Id.

In the Notice of Rights, under the Request for Disposition section, Defendant checked and initialed the box stating, in Spanish,

I admit that I am in the United States illegally, and I believe that I do not face harm if I return to my country. I give up my right to a hearing before the Immigration Court. I wish to return to my country as soon as arrangements can be made to effect my departure. I understand that I may be held in detention until my departure.

Id. Defendant signed and dated the Notice of Rights and an immigration officer signed and dated the Certification of Service, which states that Defendant read the form in Spanish and an immigration officer read the form to Defendant in Spanish. Id.

On February 26, 2004, Defendant received a Notice to Appear before an Immigration Judge ("Notice to Appear") (Exhibit 2). The Notice to Appear set forth Defendant's rights at the removal hearing, including his right to appeal an adverse decision by the Immigration Judge. Id. at 2. An immigration agent certified that an immigration officer read the Notice to Appear to Defendant in Spanish. Id. Defendant refused to sign under the Request for Prompt Hearing section, but did sign under the Certificate of Service section. Id.

On February 26, 2004, Defendant received a Stipulated Request for Removal Order and Waiver of Hearing ("Stipulation") (Exhibit 3). The Stipulation was printed in both English and Spanish and Defendant stipulated, in relevant part, that he waived his right to a removal hearing, requested that removal proceedings be held without a hearing and that the Immigration Judge issue an order based on the written record. Id. In the Stipulation, Defendant admitted that (1) he was not a citizen of the United States; (2) he was a citizen and native of Mexico; (3) he arrived in the United States ...


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