Free Motion to Dismiss - District Court of California - California

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1 JENNIFER L. COON California State Bar No. 203913 2 FEDERAL DEFENDERS OF SAN DIEGO, INC. 225 Broadway, Suite 900 3 San Diego, CA 92101-5008 (619) 234-8467/Fax: (619) 687-2666 4 E-Mail: [email protected] 5 Attorneys for Mr. Elfego Arce-Martinez 6 7 8 9 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA (HONORABLE DANA M. SABRAW) ) ) ) ) ) ) ) ) ) ) I. STATEMENT OF FACTS1 Arrest Mr. Arce-Martinez was arrested on November 2, 2007. The government alleges that, on that date, CASE NO. 07CR3207-DMS DATE: TIME: March 7, 2008 11:00 a.m.

11 UNITED STATES OF AMERICA, 12 13 v. 14 ELFEGO ARCE-MARTINEZ, 15 16 17 18 19 A. 20 Defendant. Plaintiff,

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS

21 Border Patrol Agent J. Morales responded to a sensor alert, and came into contact with Mr. Arce-Martinez 22 in an area located north of the border and seven miles east of the Tecate, California port of entry. The 23 government further alleges that, after questioning Mr. Arce-Martinez regarding his citizenship and permission 24 to legally enter the United States, the border patrol agent arrested Mr. Arce-Martinez and transported him to 25 the Campo Border Patrol station, where he was subjected to further questioning. He was subsequently 26 charged with one count of violating 8 U.S.C. § 1326(a) and (b) (illegal alien found in the United States after 27 deportation). 28 The following statement of facts and exhibits is based primarily on information and evidence provided by the government in discovery. Mr. Arce-Martinez does not admit the accuracy of such information and evidence and reserves the right to challenge its accuracy.
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Underlying Deportation Mr. Elfego Arce-Martinez is a long-time lawful resident of the United States and a beloved husband,

3 father, and grandfather. He applied for Temporary Residence in August 1987, as part of the amnesty 4 program. See Exhibit A (Applications for Waiver of Grounds of Excludability and for Temporary Resident 5 Status).2 At that time, Mr. Arce-Martinez had a steady history of employment in the U.S., his wife also had 6 been approved for lawful residence, and the couple already had two U.S.-born children. See id. Mr. Arce7 Martinez was granted temporary residence status in April 1988. See Exhibit B (Order Granting Temporary 8 Resident Status). He became a lawful permanent resident of the United States on December 1, 1989. See 9 Exhibit C (Memorandum re: Status Verification). He has been married to his wife, Petra Ramon-Calvillo, 10 who is also a long-time lawful permanent resident, for 29 years. The couple now have four grown children 11 and five young grandchildren, all of whom are U.S. citizens. 12 According to information provided by the government, on July 1, 1996, an immigration judge ordered

13 Mr. Arce-Martinez removed from the United States. See Exhibit D (Order of the Immigration Judge).3 The 14 proceedings were initiated by an Order to Show Cause dated October 22, 1995. See Exhibit E (Order to Show 15 Cause). In the OSC, the immigration service alleged that Mr. Arce-Martinez had suffered a conviction on 16 November 21, 1990, for transportation of methamphetamine in violation of Cal. Health & Safety Code 17 § 11379. See id. The immigration service further alleged that Mr. Arce-Martinez was removable because 18 this conviction was an aggravated felony. See id. No other basis for removal was alleged. See id. 19 At the removal hearing, the IJ erroneously found that Mr. Arce-Martinez had suffered an aggravated

20 felony. As a result, the IJ mis-informed Mr. Arce-Martinez that he was removable. In addition, the IJ mis21 informed him that he did not qualify for Section 212(c) relief, and failed to inform him of a number of other 22 forms of relief for which he might be eligible ­ including, but not limited to, cancellation of removal, 23 adjustment of status, and voluntary departure.4 24 25 26 27 28 cover. 2 07CR3207-DMS Exhibits A through E are true and correct copies of documents produced by the government in discovery from Mr. Arce-Martinez's A-file. The 1996 IJ order, based on Mr. Arce-Martinez's alleged conviction for an aggravated felony, is the only IJ order supporting any removals in this case.
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A transcript of relevant portions of the deportation tape will be submitted under separate

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II. MOTION TO DISMISS INDICTMENT DUE TO INVALID DEPORTATION The indictment against Mr. Arce-Martinez must be dismissed because the underlying deportation

4 order violated due process. That deportation order was invalid for two separate and independent reasons. 5 First, the IJ erroneously found that Mr. Arce-Martinez's alleged conviction for transportation of a controlled 6 substance under California Health & Safety Code § 11379 was an aggravated felony rendering him 7 removable. To the contrary, however, the Ninth Circuit has held that California "transportation" offenses, 8 including § 11379, are categorically overbroad. Mr. Arce-Martinez did not have a conviction that qualified 9 as an "aggravated felony," and thus was clearly and unconstitutionally prejudiced when he was erroneously 10 found removable on that ground. Second, the IJ misinformed Mr. Arce-Martinez that he was ineligible for 11 Section 212(c) relief. As a longtime lawful permanent resident, with substantial family ties to the United 12 States and other equities, Mr. Arce-Martinez had plausible grounds for that relief. Nevertheless, the IJ 13 erroneously advised Mr. Arce-Martinez that the recent enactment of AEDPA had eliminated the availability 14 of that relief to him as an aggravated felon. In fact, however, as the U.S. Supreme Court has subsequently 15 made clear, AEDPA cannot be applied retroactively to eliminate Section 212(c) relief to aliens like Mr. Arce16 Martinez. Because Mr. Arce-Martinez's pending charge is based on a removal that was fundamentally unfair, 17 this Court must dismiss the indictment against him. 18 A. 19 Requirements for Collateral Attack of a Removal Order It is well-established that a defendant who has been charged with a Section 1326 offense has a right

20 to collaterally attack the underlying removal order on due process grounds. United States v. Mendoza-Lopez, 21 481 U.S. 828, 837-38 (1987) (holding that "where a determination made in an administrative proceeding is 22 to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful 23 review of the administrative proceeding"); United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047-48 (9th 24 Cir. 2004) (same). Pursuant to Section 1326(d), to attack a deportation collaterally, a defendant must 25 demonstrate: (1) that the defendant exhausted all administrative remedies available to him to appeal his 26 removal order; (2) that the underlying removal proceedings at which the order was issued improperly 27 deprived him of the opportunity for judicial review; and (3) that the entry of the order was fundamentally 28 unfair. 8 U.S.C. § 1326(d).

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The Underlying Removal Was Invalid Because Mr. Arce-Martinez Is Not An Aggravated Felon During Mr. Arce-Martinez's immigration proceedings, the immigration judge erroneously found Mr.

3 Arce-Martinez removable as an aggravated felon based on his alleged conviction for transportation of a 4 controlled substance in violation of Cal. Health & Safety Code § 11379. The immigration judge's erroneous 5 conclusion that this conviction was an aggravated felony was the sole basis for the order of removal. 6 An underlying removal order is fundamentally unfair if: (1) a defendant's due process rights were

7 violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the 8 defects. See Ubaldo-Figueroa, 364 F.3d at 1048. An IJ violates due process by erroneously determining that 9 an alien's prior conviction is an aggravated felony, and therefore erroneously advising him that he is ineligible 10 for discretionary relief. See United States v. Camacho-Lopez, 450 F.3d 928, 930 (9th Cir. 2006). Moreover, 11 Mr. Arce-Martinez suffered prejudice because he had not committed an aggravated felony, the only ground 12 of removability pursued at the removal hearing. See id. at 930 (alien's "Notice to Appear charged him as 13 removable only for having committed an aggravated felony; as discussed above, [alien's] prior conviction 14 did not fit that definition. Thus, [the alien] was removed when he should not have been and clearly suffered 15 prejudice"). 16 17 1. Cal. Health & Safety Code § 11379 Is Not an Aggravated Felony

The Immigration Judge erred when he held that a prior conviction under Cal. Health & Safety Code

18 § 11379 is an aggravated felony. The statutory definition for an aggravated felony is set forth in 8 U.S.C. 19 § 1101(a)(43).5 To determine whether a conviction qualifies as an aggravated felony, the Court must first use 20 the "categorical approach," under which it "look[s] to the statutory definition of the crime, rather than to the 21 defendant's specific conduct." See Taylor v. United States, 495 U.S. 575, 588-89 (1990); Sandoval-Lua v. 22 Gonzales, 499 F.3d 1121, 1127 (9th Cir. 2007). 23 Section 11379(a) provides criminal penalties for "every person who transports, imports into this state,

24 sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, 25 26 27 28 Under 8 U.S.C. § 1101(a)(43), an aggravated felony is defined to include various listed criminal offenses, one of which is "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." A "drug trafficking crime" is defined in turn to include "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)..." 18 U.S.C. § 924(c)(2). 4 07CR3207-DMS
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1 administer, or give away, or attempts to import into this state or transport any [defined] controlled 2 substance..." Cal. H&S § 11379(a). In United States v. Rivera-Sanchez, 247 F.3d 905, 909 (9th Cir. 2001), 3 the Ninth Circuit found that California "transportation" offenses do not qualify as aggravated felonies under 4 8 U.S.C. § 1101(a)(43). Specifically, the court noted that H&S § 11360(a) ­ a nearly identical statute, 5 substituting only the term "marijuana" for "controlled substance ­ was not categorically an aggravated felony 6 because it criminalized a wide variety of acts, including transportation for personal use; offers to transport, 7 sell, furnish, administer, or give away; and solicitation of prohibited acts. See Rivera-Sanchez, 247 F.3d 905, 8 909 (9th Cir. 2001); see also United States v. Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004) (applying 9 Rivera-Sanchez analysis to H&S § 11379). 10 Consistent with this precedent, the Ninth Circuit recently held, in no uncertain terms, that "a

11 conviction under § 11379(a) is not categorically an `aggravated felony' under 8 U.S.C. § 1101(a)(43)(B)." 12 Sandoval-Lua, 499 F.3d at 1129. Therefore, the prior conviction on which the Immigration Judge relied is 13 not categorically an aggravated felony. Moreover, Mr. Arce-Martinez is not aware of, nor did the 14 Immigration Judge review, any judicially noticeable documents that would establish that his conviction is an 15 aggravated felony under the modified categorical approach. Accordingly, the Immigration Judge erred in 16 determining that Mr. Arce-Martinez was removable due to a prior aggravated felony conviction. 17 18 2. Mr. Arce-Martinez is Excused from § 1326(d)'s Exhaustion Requirement.

Following his 1996 removal hearing, Mr. Arce-Martinez did not seek administrative review of the IJ's

19 order of removal. Normally, a defendant charged with violating § 1326 who wishes to collaterally challenge 20 his removal must have exhausted any administrative remedies available to him. See 8 U.S.C. § 1326(d)(1). 21 However, a defendant need not satisfy the exhaustion requirement if his waiver of an administrative appeal 22 was invalid. See United States v. Muro-Inclan, 249 F.3d 1180, 1183-84 (9th Cir. 2001). An IJ's failure to 23 advise an alien of his eligibility for relief renders the appeal waiver invalid, because it was not "considered 24 and intelligent." See United States v. Gonzalez, 429 F.3d 1252, 1256 (9th Cir. 2005); United States v. Arrieta, 25 224 F.3d 1076, 1079 (9th Cir. 2000). 26 Here, the IJ misinformed Mr. Arce-Martinez of his eligibility for relief from removal. Specifically,

27 the IJ misinformed Mr. Arce-Martinez that he was removable as an aggravated felon; and also failed to inform 28 him that he was eligible for a number of forms of relief, such as cancellation of removal, adjustment of status,

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1 and voluntary departure. In this specific context, the Ninth Circuit has excused a defendant from exhausting 2 his administrative rights because of an IJ's erroneous advisal that the defendant was removable as an 3 "aggravated felon." Camacho-Lopez, 450 F.3d at 930. As in Camacho-Lopez, and due to the IJ's error, Mr. 4 Arce-Martinez is excused from § 1326(d)'s exhaustion requirement. 5 6 3. Mr. Arce-Martinez was Denied Judicial Review

Similarly, the IJ's failure to inform Mr. Arce-Martinez of his eligibility for relief from removal

7 deprived him of an opportunity to seek judicial review of the IJ's removal order. A defendant seeking to 8 collaterally challenge a deportation under § 1326(d) normally must show that he was improperly denied the 9 opportunity for judicial review. See 8 U.S.C. 1326(d)(2). However, an IJ's failure to inform a person of their 10 eligibility for relief from removal satisfies the requirement that a defendant be denied his opportunity to seek 11 judicial review. Camacho-Lopez, 450 F.3d at 930; Ubaldo-Figueroa, 364 F.3d at 1047; Ortiz-Lopez, 385 12 F.3d at 1204 n.2. In this context, the Ninth Circuit has held that a defendant was denied judicial review 13 because of an IJ's erroneous advisal that the defendant was removable as an "aggravated felon." Camacho14 Lopez, 450 F.3d at 930. As in Camacho-Lopez, and due to the IJ's error, Mr. Arce-Martinez was effectively 15 denied judicial review. 16 C. 17 18 As a separate and independent ground for this motion, and irrespective of whether Mr. ArceThe Underlying Deportation Was Invalid Because Mr. Arce-Martinez Had Plausible Grounds for Section 212(c) Relief

19 Martinez's prior conviction is deemed to be an aggravated felony, Mr. Arce-Martinez's deportation was 20 invalid because the IJ failed to advise him of his eligibility for Section 212(c) relief. Prior to 1996, a Legal 21 Permanent Resident could apply for a discretionary waiver of deportation under former Immigration and 22 Nationality Act § 212(c). 8 U.S.C. § 1182(c) (1995 ed.). 23 In 1996, Congress passed several laws affecting eligibility for Section 212(c) relief. AEDPA, which

24 took effect on April 24, 1996, narrowed eligibility for Section 212(c) relief to exclude, inter alia, aliens with 25 aggravated felonies. See I.N.S. v. St. Cyr, 533 U.S. 289, 295 & n.7 (2001). IIRIRA, which took effect on 26 September 30, 1996, eliminated Section 212(c) relief entirely. See id. Subsequently, the position of the 27 Attorney General was that the repeal of Section 212(c) relief for aggravated felons was retroactive. See St. 28 Cyr, 533 U.S. at 297-98 (describing the position of the Attorney General).

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Mr. Arce-Martinez's deportation hearing occurred after AEDPA's effective date (but before enactment

2 of IIRIRA), and was thus affected by AEDPA's elimination of Section 212(c) relief for aliens with aggravated 3 felonies. In fact, just days before Mr. Arce-Martinez's deportation hearing, the Board of Immigration 4 Appeals held that AEDPA's bar on Section 212(c) relief applied retroactively to aliens like Mr. Arce5 Martinez, whose immigration proceedings were pending prior to AEDPA's enactment, if they had failed to 6 file Section 212(c) applications prior to AEDPA's effective date. See Matter of Soriano, Int. Dec. 3289 (BIA 7 June 27, 1996). Subsequently, the Attorney General narrowed Section 212(c) relief even further, finding that 8 AEDPA applied retroactively regardless of when any application for relief was filed. See Matter of Soriano, 9 Int. Dec. 3289 (A.G. Feb. 21, 1997). 10 The Supreme Court, however, disagreed. In 2001, the Supreme Court held that the repeal of section

11 212(c) relief was available for criminal aliens who pleaded guilty to offenses when section 212(c) was 12 available. St. Cyr, 533 U.S. at 320. Specifically, the Court held that "depriving removable aliens of 13 consideration for § 212(c) relief produces an impermissible retroactive effect for aliens who, like respondent, 14 were convicted pursuant to a plea agreement at a time when their plea would not have rendered them 15 ineligible for § 212(c) relief." Id. Thus, under St. Cyr, the elimination of Section 212(c) relief cannot be 16 retroactively applied. 17 18 1. Mr. Arce-Martinez Was Eligible for Section 212(c) Relief

Mr. Arce-Martinez was ordered deported in July 1996, after the enactment of AEDPA, but prior to

19 the effective date of IIRIRA. However, because his underlying conviction occurred by plea in November 20 1990, when Section 212(c) was available, he was still eligible for consideration for Section 212(c) relief. See 21 St. Cyr, 533 U.S. at 320. 22 To qualify for such a discretionary waiver, Section 212(c) required the alien to have legal permanent

23 resident status and seven years of unrelinquished domicile. 8 U.S.C. § 1182(c) (1995 ed.). Mr. Arce24 Martinez gained his legal permanent residence in 1989. Moreover, because he acquired legal permanent 25 residency through amnesty, his period of lawful domicile began accruing upon the application for amnesty, 26 as opposed to when it was granted. De Robles v. I.N.S., 58 F.3d 1355, 1360-1361 (9th Cir. 1995). Legal 27 domicile for the purposes of section 212(c) continued to accrue until the order of deportation was final. See 28 United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1085 (9th Cir. 1996). Mr. Arce-Martinez thus acquired

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1 domicile in 1987, when he petitioned for amnesty. Accordingly, at the time of his deportation in July 1996, 2 as a legal permanent resident with more than seven years of domicile, Mr. Arce-Martinez qualified for Section 3 212(c) relief. 4 Nevertheless, the IJ erroneously informed Mr. Arce-Martinez that he was not eligible for Section

5 212(c) relief under Matter of Soriano, because he had not filed a waiver application prior to AEDPA's 6 effective date. This advisement was clearly erroneous under St. Cyr. 7 8 9 In determining whether a defendant has been prejudiced by the defective deportation proceedings, a 2. Mr. Arce-Martinez Was Prejudiced by the IJ's Failure to Advise Him of His Eligibility For Section 212(c) Relief

10 defendant need not show that he actually would have received relief. See United States v. Arrieta, 224 F.3d 11 1076, 1079 (9th Cir. 2000). Rather, he only has to show that he had "plausible grounds" for such relief. Id. 12 If such relief was "plausible," then the deportation or removal cannot be used as a basis for a section 1326 13 indictment and it must be dismissed. Moreover, once Mr. Arce-Martinez makes a prima facie showing of 14 prejudice, "the burden shifts to the government to demonstrate that the procedural violation [i.e., failure to 15 advise alien of eligibility for discretionary relief] would not have changed the proceedings' outcome." United 16 States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003). 17 Here, Mr. Arce-Martinez was prejudiced because he had plausible grounds for Section 212(c) relief.

18 The criteria for Section 212(c) relief includes the duration of an alien's residence, the impact of deportation 19 on the family, the number of citizens in the family, and other factors. See St. Cyr, 533 U.S. at 296 n.5 (citing 20 Matter of Marin, 16 I&N Dec. 581 (1978). In 1996, Mr. Arce-Martinez had lived lawfully in the United 21 States for more than nine years, since his amnesty application was filed in 1987. He had a strong employment 22 history and strong familial ties in the United States. Specifically, he was married to a lawful permanent 23 resident and had U.S. citizen children, and was closely involved in his children's lives. His deportation would 24 have had, and did have, a devastating effect on his family. 25 Such factors are more than sufficient to establish plausible grounds for Section 212(c) relief. Before

26 1996, Section 212(c) relief was often sought by those in deportation proceedings. See St. Cyr, 533 U.S. at 27 296. It was often granted. Indeed, a majority of applications for section 212(c) relief were approved. Id. at 28 296 n.5 (citing statistics regarding the frequency that Section 212(c) was granted). Moreover, the Ninth

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1 Circuit has held that plausible grounds existed in similar circumstances. In Ubaldo-Figueroa, 364 F.3d at 2 1046, for example, the alien had a prior conviction for burglary of a dwelling. Nevertheless, the Ninth Circuit 3 held that plausible grounds for Section 212(c) relief existed where the alien had a strong employment history, 4 strong familial ties in the United States and took an active role in his children's lives. Id. at 1051. In 5 particular, the court noted that having a U.S. citizen wife and children is a "weighty factor in support of the 6 favorable exercise of discretion under § 212(c)." Id. Thus, the court found that the equities in the alien's 7 favor were "significant," that he "had a plausible claim for relief" and that "the IJ's unconstitutional failure 8 to inform him that he was eligible for § 212(c) relief prejudiced him." Id. 9 Here, likewise, Mr. Arce-Martinez had plausible grounds for relief. He was therefore prejudiced by

10 the IJ's erroneous advisement that he was ineligible for Section 212(c) relief. However, to the extent that this 11 Court does not believe that Mr. Arce-Martinez has shown sufficient equities, he asks this Court to set an 12 evidentiary hearing, during which he can present evidence to show the plausibility that he would have 13 received relief from deportation. 14 15 3. Exhaustion and Deprivation of Judicial Review Need Not Be Shown

As discussed above, an alien is excused from the exhaustion and deprivation of judicial review

16 requirements if his waiver of appeal was invalid. An IJ's failure to advise an alien of his eligibility for relief 17 renders the appeal waiver invalid, because it was not "considered and intelligent." See United States v. 18 Gonzalez, 429 F.3d 1252, 1256 (9th Cir. 2005); United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). 19 Here, Mr. Arce-Martinez's waiver of his right to appeal was not considered and intelligent. The IJ

20 erroneously informed Mr. Arce-Martinez that, as an aggravated felon, he was not eligible for Section 212(c) 21 relief under AEDPA. "The duty of the IJ to inform an alien of his eligibility for relief is mandatory, and the 22 failure to do so constitutes a violation of the alien's due process rights." United States v. Gonzalez-Valerio, 23 342 F.3d 1051, 1054 (9th Cir. 2003).6 24 25 26 27 28 The IJ further informed Mr. Arce-Martinez that, under the BIA's decision in Matter of Soriano, there was no exception for aliens with pending immigration proceedings who had not filed Section 212(c) applications prior to AEDPA's effective date. An appeal on that issue would have been futile, as the Attorney General later found AEDPA to be entirely retroactive, regardless of when immigration proceedings had begun or when any Section 212(c) application had been filed. See Matter of Soriano, Int. Dec. 3289 (A.G. Feb. 21, 1997); St. Cyr, 533 U.S. at 297-98. 9 07CR3207-DMS
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III. MOTION TO SUPPRESS ANY STATEMENTS BY MR. ARCE-MARTINEZ The Court Must Suppress Mr. Arce-Martinez's Alleged Pre-Miranda Field Statements Because They Were Elicited as the Result of Custodial Interrogation The prosecution may not use statements, whether exculpatory or inculpatory, stemming from a

6 custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to 7 secure the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444 (1966); see also 8 Berkemer v. McCarty, 468 U.S. 420, 428 (1984) (restating Miranda principles). "The ruling in Miranda 9 prohibits `custodial interrogation' unless the government first gives warnings to the [subject of the 10 interrogation]." United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1046 (9th Cir. 1990). Once a person 11 is in custody, Miranda warnings must be given prior to any interrogation. See United States v. Estrada-Lucas, 12 651 F.2d 1261, 1265 (9th Cir. 1980). Those warnings must advise the defendant of each of his "critical" 13 rights. United States v. Bland, 908 F.2d 471, 474 (9th Cir. 1990). If a defendant indicates that he wishes to 14 remain silent or requests counsel, the interrogation must cease. Miranda, 384 U.S. at 474; see also Edwards 15 v. Arizona, 451 U.S. 477, 484 (1981). 16 Here, there were no such Miranda advisement given in the field. Moreover, material produced by

17 the government in discovery indicates that Agent Morales first confronted and interrogated Mr. Arce18 Martinez regarding his immigration status at approximately 1:20 p.m. in an isolated area north of the 19 international border. Reports characterize the areas as containing brush, and do not indicate that other 20 pedestrian or vehicle traffic was nearby. This interrogation preceded any form of administration of Miranda 21 rights by more than three and a half hours. Because Mr. Arce-Martinez was "in custody" at the time of this 22 questioning, any statements by Mr. Arce-Martinez must be suppressed. 23 Custodial interrogation occurs when, under the totality of the circumstances, the questions asked by

24 the authorities are reasonably likely to elicit an incriminating response from the subject. See id. Although 25 questions that include routine biographical information usually do not trigger the safeguard of Miranda v. 26 Arizona,384 U.S. 436 (1996), "[t]hat exception is inapplicable . . . where the elicitation of information 27 regarding immigration status is reasonably likely to inculpate the [subject]." Id. 28 //

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1

In United States v. Kim, 292 F.3d 971, 973 (9th Cir. 2002),7 the Ninth Circuit noted that the following

2 factors are to be considered in deciding whether or not a police-dominated atmosphere exists: "(1) the 3 language used to summon the individual; (2) the extent to which the defendant is confronted with evidence 4 of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree 5 of pressure applied to detain the individual." Id. (citations omitted); see also United States v. Estrada-Lucas, 6 651 F.2d 1261, 1265 (9th Cir. 1980) (in context of custody at the border, "[t]he factors to be weighed are the 7 language used to summon him, the physical surroundings of the interrogation, the extent to which he is 8 confronted with evidence of his guilt, and the pressure exerted to detain him."). The Ninth Circuit also 9 recognizes that "question[s] implying that [the agent] suspected [the defendant] of criminal activity" can give 10 rise to a reasonable belief that one is not free to ignore the questions and leave. United States v. Chavez11 Valenzuela, 268 F.3d 719, 725 (9th Cir. 2001), overruled on other grounds, United States v. Mendez, 476 12 F.3d 1077, 1080 (9th Cir. 2007).8 13 It is not necessary that an individual be physically restrained in any fashion. In United States v.

14 Beraun-Panez, 812 F.2d 578 (9th Cir. 1987), the Ninth Circuit found that an individual questioned out in an 15 open field, who was neither held nor handcuffed nor told that he was under arrest, was nonetheless in custody 16 for Miranda purposes. Beraun-Panez held that "[a]lthough not physically bound, Beraun-Panez was 17 subjected to psychological restraints just as binding." 812 F.2d at 580.9 18 Here, the criteria for a police-dominated atmosphere as articulated in Kim are clearly met. First,

19 although the language used to summon Mr. Arce-Martinez is not precisely indicated in the reports, Agent 20 Morales did clearly indicate that he was a law enforcement officer and that Mr. Arce-Martinez was in 21 custody. The facts that Agent Morales was in uniform, confronting a pedestrian, in an isolated area with no 22 23 24 25 26 27 28 In Kim, the Ninth Circuit found that a Korean woman who went to her own store, voluntarily, because an officer's visit prompted her to do so was in custody even though she was in familiar surroundings because the police "temporarily took over complete control of Kim's store creating a `police-dominated atmosphere.'" 292 F.3d at 977. This combined with difficulty with English and isolation from family supported the finding that Kim did not willingly agree to submit to an encounter with the police. Id.
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Chavez-Valenzuela involved a roadside stop of a motorist on a public street, out in the open.

The police confronted Beraun-Panez with his alienage, accused him of lying and kept him separated from his co-worker in a remote rural area. Beraun-Panez, 812 F.2d at 580. 11 07CR3207-DMS

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1 means to escape, further substantiate this factor and enhance the reasonable belief that Mr. Arce-Martinez 2 was not free to leave. Second, Mr. Arce-Martinez was confronted with evidence of guilt. He was 3 apprehended in an isolated area, hiding in the brush, and immediately interrogated about his immigration 4 status. Moreover, the agent's questioning bore on Mr. Arce-Martinez's alienage, which is an element of the 5 charged offense, 8 U.S.C. § 1326. See United States v. Meza-Soria, 935 F.2d 166, 171 (9th Cir. 1991). This 6 question in such a setting carried with it implicit suspicion of criminal activity. A person subjected to such 7 questioning in such a situation would not reasonably feel free to leave, and thus is subject to custodial 8 interrogation. See Chavez-Valenzuela, 268 F.3d at 725. Third, the physical surrounding of the interrogation 9 was a remote area just north of the international border. The reports do not mention any vehicular or 10 pedestrian traffic, or any landmarks such as homes or businesses. The remaining factors, the length of the 11 detention and the amount of pressure applied to Mr. Arce-Martinez, are unclear from the reports. But because 12 Mr. Arce-Martinez was apprehended in a rural area, by a uniformed agent, and interrogated about elements 13 of a criminal offense, his alleged statements must be suppressed. 14 In the context of an encounter between border patrol and an individual near the international border,

15 any questioning regarding an individual's alienage falls under the rubric of custodial interrogation. 16 Furthermore, because of the close relationship between civil and criminal immigration investigations, "[c]ivil 17 as well as criminal interrogation of in-custody defendants by INS [agents] should generally be accompanied 18 by the Miranda warnings." United States v. Mata-Abundiz, 717 F.2d 1277, 1279 (9th Cir. 1983). 19 In United States v. Gonzalez-Sandoval, 894 F.2d 1043 (9th Cir. 1990), the defendant appeared at a

20 local police station to provide his state parole officer with a urine sample. Id. at 1046. A second parole officer 21 accused Mr. Gonzalez-Sandoval of being a deported alien and called the Border Patrol. Id. The Border Patrol 22 came to the station, and without warning him pursuant to Miranda, asked Mr. Gonzalez-Sandoval where he 23 was born and whether he possessed documents to verify the legality of his presence in the United States. Id. 24 The Border Patrol agents then took Mr. Gonzalez-Sandoval to the Calexico Border Patrol Station. Failing to 25 administer the Miranda warnings a second time, the agents questioned Mr. Gonzalez-Sandoval about any 26 alias he possessed. Id. The agents ran an INS record check against Mr. Gonzalez-Sandoval's name and alias, 27 and found Mr. Gonzalez-Sandoval's prior immigration record. Id. The Ninth Circuit found that the district 28 //

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1 court erred in failing to suppress the unwarned, prompted statements by Mr. Gonzalez-Sandoval about his 2 name and alias. Id. at 1047. 3 In United States v. Mata-Abundiz, an INS agent visited the defendant in a state jail to obtain

4 biographical information to determine the defendant's citizenship status. 717 F.2d at 1278. The agent knew 5 about the state charges against Mr. Mata-Abundiz, and did not warn him pursuant to Miranda prior to 6 obtaining the biographical data. Id. Afterwards, the agent made further inquiries at his office and within 7 three hours returned to the jail to charge Mr. Mata-Abundiz with a federal immigration offense. Id. Despite 8 the fact that the agent characterized his interrogation as pursuant to a civil investigation, the court held that 9 the agent should have warned Mr. Mata-Abundiz as required by Miranda because the agent knew his 10 interrogation could lead to federal charges against the defendant. Id. at 1278-1279. 11 Here, it is obvious that the information the agent elicited from Mr. Arce-Martinez regarding his

12 citizenship and application for permission to enter was "reasonably likely to inculpate" him. The questions 13 served no purpose other than inculpation. They are in fact two of the four elements that they government must 14 prove to obtain a conviction for a violation of 8 U.S.C. § 1326. Moreover, it is undisputed that Mr. Arce15 Martinez was not read his Miranda rights at that point, nor advised that his answers to the agent's questions 16 could result in federal charges against him. Therefore, the statements must be suppressed. 17 B. 18 Any Pre-Miranda Statements at the Station Must Be Suppressed The discovery is unclear as to whether Mr. Arce-Martinez made statements at the border patrol station,

19 prior to administration of his Miranda rights. To the extent he did so, Mr. Arce-Martinez was in custody at 20 the time of the alleged questioning, as he had been deprived of his freedom by the agents, and had not been 21 provided Miranda warnings prior to this questioning. Therefore, this Court should suppress any pre-Miranda 22 statements made by Mr. Arce-Martinez at the station. 23 C. 24 Mr. Arce-Martinez's Alleged Post-Miranda Statements Must Be Suppressed Any post-Miranda statements must also be suppressed because any Miranda warnings were withheld

25 until after Mr. Arce-Martinez had already been questioned and made statements. "The threshold issue when 26 interrogators question first and warn later is thus whether it would be reasonable to find that in these 27 circumstances the warnings could function `effectively' as Miranda requires." Missouri v. Seibert, 542 U.S. 28 600, 611-12 (2004) (plurality). "By any objective measure," where interrogators withhold warnings until

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1 after interrogation succeeds in eliciting a confession, "the warnings will be ineffective in preparing a suspect 2 for successive interrogation, close in time and similar in content." Id. at 613. Unless the warnings could 3 place a suspect who has just been interrogated in a position to make an informed choice to stop talking even 4 if he had talked earlier, "there is no practical justification for accepting the formal warnings as compliance 5 with Miranda, or for treating the second stage of interrogation as distinct from the first . . . " Id. at 612. Thus, 6 "it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning 7 as independent interrogations subject to independent evaluation simply because Miranda warnings formally 8 punctuate them in the middle." Id. at 614. 9 Here, the agents intentionally questioned Mr. Arce-Martinez without the benefit of Miranda warnings,

10 and after eliciting statements, provided him with Miranda warnings and recorded his statement. Because the 11 agents intentionally questioned Mr. Arce-Martinez without reading him his Miranda rights, under Seibert, 12 his subsequent, post-Miranda statements must be suppressed. 13 D. 14 15 Any Statements Made By Mr. Arce-Martinez Must Be Suppressed Because They Were Not Voluntary Mr. Arce-Martinez requests a voluntariness hearing pursuant to 18 U.S.C. § 3501 concerning any

16 statements that the government alleges he made. Even where the procedural safeguards of Miranda have 17 been satisfied, a criminal defendant is deprived of due process of law if his conviction is founded upon an 18 involuntary confession. Arizona v. Fulminante, 499 U.S. 279 (1991); Jackson v. Denno, 378 U.S. 368, 387 19 (1964). The government bears the burden of proving, by a preponderance of the evidence, that a confession 20 is voluntary. Lego v. Twomey, 404 U.S. 477, 483 (1972). Moreover, because "`suppression hearings are 21 often as important as the trial itself,'" United States v. Prieto-Villa, 910 F.2d 601, 610 (9th Cir. 1990) 22 (quoting Waller v. Georgia, 467 U.S. 39, 46 (1984)), the Court's findings should be supported by evidence, 23 not merely an unsubstantiated recitation of purported evidence in a prosecutor's responsive pleadings. 24 // 25 // 26 // 27 // 28 //

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IV. MOTION FOR LEAVE TO SUPPLEMENT MOTIONS AND TO FILE ADDITIONAL MOTIONS Defense counsel is still in the process of obtaining evidence in support of these motions. In

5 addition, discovery is continuing. In particular, defense counsel is still waiting to receive discoverable 6 materials related to the defendant's interrogation, as well as a supplemental A-file. Therefore, counsel 7 requests the opportunity to supplement this motion with further evidence and briefing at or prior to the 8 hearing on this matter, and to file additional motions as necessary. 9 10 11 V. CONCLUSION For the foregoing reasons, Mr. Arce-Martinez respectfully requests that the Court grant the above

12 motions. 13 14 15 DATED: 16 17 18 19 20 21 22 23 24 25 26 27 28 February 22, 2008 /s/ Jennifer L. Coon JENNIFER L. COON Federal Defenders of San Diego, Inc. Attorneys for Mr. Arce-Martinez Respectfully submitted,

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CERTIFICATE OF SERVICE Counsel for Defendant certifies that the foregoing pleading is true and accurate to the best of

3 information and belief, and that a copy of the foregoing document has been caused to be delivered this day 4 upon: 5 6 Courtesy Copy Court Copy Christopher Alexander via ECF/NEF /s/ Jennifer L. Coon JENNIFER L. COON Federal Defenders of San Diego, Inc. 225 Broadway, Suite 900 San Diego, CA 92101-5030 (619) 234-8467 (tel) (619) 687-2666 (fax) e-mail: [email protected]

7 Dated: February 22, 2008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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