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United States v. Pacheco-Poo

United States District Court, N.D. Iowa, Cedar Rapids Division

December 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DOMINGO PACHECO-POO, Defendant.

          ORDER

          C.J. WILLIAMS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This matter is before the Court on defendant's First Motion to Dismiss (Doc. 25).[1]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 Court's ruling.

         II. RELEVANT BACKGROUND

         Immigration 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.

         On 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 2012.

         On June 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.

         Immigration and Custom Enforcement (ICE) officers transported defendant to Tucson, Arizona, for deportation processing. There, Agent Khristina Ondrejcak interviewed defendant again in Spanish.[2] (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 that fear.

(Exhibit 3, at 1).[3] 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 was illiterate.[4]

         Defendant 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.

         On July 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).

         On 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.

         The 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 ...


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