United States District Court, N.D. Iowa, Cedar Rapids Division
WILLIAMS UNITED STATES DISTRICT JUDGE.
matter is before the Court on defendant's First Motion to
Dismiss (Doc. 25).The government timely filed a resistance.
(Doc. 29). On Monday, December 10, 2018, the Court held an
evidentiary hearing on the motion. United States Border
Patrol Agents Khristina Ondrejcak and Steve Mahoney testified
on behalf of the United States. In addition, the Court
accepted into evidence government exhibits 1 through 12.
Defendant testified on his own behalf and the Court accepted
into evidence defense exhibits A through F. At the conclusion
of the hearing, the Court announced its ruling
denying defendant's First Motion to
Dismiss. This Opinion further explains the basis for the
and Customs Enforcement (“ICE”) officers arrested
defendant on October 2, 2018, when defendant appeared at an
ICE office at the request of ICE officers handling
immigration matters related to defendant's wife and
children. Defendant was arrested on immigration charges
because he was subject to an order of deportation.
October 11, 2018, the government filed a criminal complaint
against defendant, charging him with the crime of being found
in the United States after Illegal Re-entry, in violation of
8 U.S.C. § 1326(a). (Case 18-mj-354, Doc. 2). On October
17, 2018, a grand jury returned an indictment charging
defendant with being found in the United States after having
been removed from the United States, in violation of 8 U.S.C.
§ 1326(a). (Doc. 2). The defendant was removed from the
United States twice, once in July 2012, and again in August
29, 2012, United States Border Patrol Officers encountered
defendant in Arizona after he illegally crossed into the
United States. (Exhibits 1 & 2). The Border Patrol Agent
who initially encountered defendant advised him of his rights
in Spanish and defendant signed a form using the initials
“DP, ” requesting to be returned to his own
country. (Exhibit 1). The form is written in Spanish. The
Court accepts that testimony as credible. The form indicates
“Notice read by subject.” (Id.).
Defendant speaks Spanish, but also speaks an indigenous
language as well. Defendant testified that he has had no
formal schooling and is illiterate.
and Custom Enforcement (ICE) officers transported defendant
to Tucson, Arizona, for deportation processing. There, Agent
Khristina Ondrejcak interviewed defendant again in
Spanish. (Exhibits 2 & 3). Defendant stated
that he came to the United States to find work. (Exhibit 3,
at 3). Agent Ondrejcak understood from defendant's
statements that he was illiterate, so she read to defendant
verbatim the documents advising defendant of his rights. This
included a paragraph that stated:
U.S. Law provides protection to certain person who face
persecution, harm or torture upon return to their home
country. If you fear or have a concern about being removed
form the United States or about being sent home, you should
tell me so during this interview because you many not have
another chance. You will have the opportunity to speak
privately and confidentially to another officer about your
fear or concern. That officer will determine if you should
remain in the United States and not be removed because of
(Exhibit 3, at 1). Agent Ondrejcak then asked defendant a
series of questions and typed defendant's responses.
(Exhibit 3, at 1-3). Defendant repeatedly stated that he did
not have any fear or concern about being returned to his home
country. (Id., at 2-3). Defendant initialed each
page with an “X, ” based on his assertion that he
testified that he remembered being arrested near the United
States border along with another fifteen to twenty people. He
recalled agents asking him his name and where he was from,
and that the agents told him that he could not come to the
United States. Defendant testified that he did not recall any
interview by any female officer. Defendant testified
generally that he did not remember filling out any paperwork.
Defendant testified that he did recall telling officers he
came to the United States seeking work. Defendant testified
that no officer ever asked him if he had been harmed in his
native country. Defendant testified that he had, however,
been harmed by his brother who was trying to kill him, and
that defendant had a scar on his neck from an assault by his
brother. Defendant testified that he was afraid to return to
Guatemala because people there do not like him because they
discriminate against natives like him. On cross examination,
however, defendant provided inconsistent testimony, at one
point testifying that he remembered telling the agent he was
not afraid to return to his home country, but later
testifying that he did not recall telling the agents
anything. Although the Court found defendant generally
credible, the Court found his testimony unreliable because he
did not recall ever talking with a female agent, when the
documents clearly show he did, and defendant presented
inconsistent testimony regarding what he said or did not say
to the officers.
1, 2012, Agent Ondrejcak completed a Determination of
Inadmissibility and ordered defendant's removal from the
United States. (Exhibit 4). Agent Ondrejcak's supervisor,
Steve Mahoney, reviewed the paperwork regarding defendant,
including his denial of any fear of being returned to his
home country, and approved defendant's removal.
(Id.). On July 13, 2012, defendant was removed to
his home country of Guatemala. (Exhibit 5).
August 21, 2012, Border Patrol Agents encountered defendant
again crossing into the United States illegally. (Exhibit 6).
Defendant again requested to be returned to his native
country. (Id.). Immigration officers again processed
defendant in a similar manner, again advising him of his
right to seek asylum if he feared return to Guatemala.
(Exhibits 7 & 8). Defendant again denied any fear of
being returned to his home country. (Id.). Defendant
was again removed from the United States. (Exhibit 9). Agent
Ondrejcak was not involved in the contact with defendant in
August 2012, but testified that the procedures she followed
in her contact with defendant in July 2012, would have been
followed by other officers encountering defendant in August
2012 because that occurred in the Tucson office which is the
headquarters office for her division.
indictment in this case alleges defendant was found in the
United States after having been removed from the United
States both in July 2012 and August 2012, in ...