The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
ORDER DENYING DEFENDANT'S FIRST MOTION TO DISMISS INDICTMENT (REDACTED)
On September 7, 2011, the government indicted defendant Jaime Munoz-Jurado on one count of illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a). (Docket 1). On October 26, 2011, Mr. Munoz-Jurado filed a motion to dismiss the indictment, collaterally attacking the deportation order underlying the offense. (Docket 18). The government resisted the motion. (Docket 30). The court held an evidentiary hearing on January 24, 2012.*fn1
(Docket 61). For the reasons set forth below, the court denies Mr. MunozJurado's motion in its entirety. In reaching this decision, the court thoroughly reviewed the record in this case, including the parties' submissions (Dockets 18, 19, 30, 67, & 69), the evidence received during the evidentiary hearing, Mr. Munoz-Jurado's complete immigration or "A" file provided by the government upon the court's request (Dockets 48 & 53), and a compact disc*fn2 submitted by the government following the evidentiary hearing.
The court limits its recitation to those facts necessary to resolve the pending motion. The court adduces the following facts from the record in this case. If needed, the court may present additional facts in its discussion of the merits of the motion.
Mr. Munoz-Jurado is a Mexican citizen and national who first entered
the United States in 1990. (Exhibit 5 at p. 2).*fn3
Immigration authorities did not have contact with Mr. Munoz-Jurado
until 2005. (HT 61:1-3).*fn4 On May 15, 2005, the La
Familia cartel in Mexico kidnaped, attacked, and raped
Mr. Munoz-Jurado's mother,*fn5 who died shortly
thereafter on June 1, 2005. (HT 3:25; 4:1-8; 39:7-15). At the time,
Mr. Munoz-Jurado lived in Keystone, South Dakota. (HT 4:9-10; Exhibit
2 at p. 2).*fn6 Upon hearing of his mother's attack,
Mr. Munoz-Jurado traveled to Mexico at the end of May of 2005 and,
after his mother's funeral, attempted to return to the United States
on June 15, 2005. (HT 4:10-17). When Mr. Munoz-Jurado attempted to do
so, immigration authorities briefly detained him and told him to
return to Mexico. (HT 5:1-11; Exhibit 1). Mr. Munoz-Jurado complied
and returned to Mexico by crossing the United States-Mexico border.
(HT 5:10-11). This act constituted a "voluntary return."*fn7
(HT 5:13-18). Immediately after returning to Mexico, Mr.
Munoz-Jurado re-crossed the border and entered the United States on
June 15, 2005. (HT 5:10-12; 6:3-5).
Mr. Munoz-Jurado returned to Keystone, South Dakota, where he lived with Ms. Hernandez-Garcia and their children. (HT 8:2-3). At some point, the Pennington County Sheriff's Office had "a contact" with Mr. Munoz-Jurado.
(HT 62:5-7). Mr. Munoz-Jurado provided his name, social security number, and address. (HT 62:7-8). The sheriff's office relayed the information to the Rapid City ICE office, which checked the social security number given by Mr. Munoz-Jurado. (HT 62:5-8). The social security number did not belong to Mr. Munoz-Jurado, a fact which concerned ICE. (HT 62:8-11).
In June of 2009, ICE mailed a "G-56 call-in letter" to Mr. Munoz-Jurado at 714 Columbia Street, Keystone, South Dakota.*fn8 (HT 8:5-7; 29:9-12; 62:12-14). A G-56 letter is an "appointment letter" sent to an individual with questionable immigration status. (HT 61:10-13). The letter advises the recipient to go to a designated ICE office to discuss his or her immigration status. (HT 61:12-14).
The G-56 letter sent to Mr. Munoz-Jurado was held at the Keystone post office. (HT 29:9-12). Ms. Hernandez-Garcia went to the post office to retrieve and sign for the letter. (HT 29:13-15). The envelope did not list a P.O. Box number. (HT 37:12-14). Staff at the post office informed her they could not receive mail unless the mail identified the addressee's P.O. Box number. (HT 29:18-19). Staff informed her this was the last time they would accept a letter without an identified P.O. Box number. (HT 29:15-17). Ms. Hernandez-Garcia informed Mr. Munoz-Jurado of the post office's policy and told him to advise immigration authorities of their P.O. Box number. (HT 29:20-21).
On June 17, 2009, as directed by the G-56 letter, Mr. Munoz-Jurado reported to the Rapid City ICE office for his appointment with Agent Brabazon.*fn9
(Exhibit 2 at p. 2). Agent Brabazon interviewed Mr. Munoz-Jurado, verified his status as an illegal alien, and collected information for the preparation of an I-213 form, "Report of Deportable/Inadmissible Alien."*fn10 (HT 64:14-24; Exhibit 2). Agent Brabazon remembered interviewing Mr. Munoz-Jurado. (HT 70:10-11). The interview took place in both Spanish and English. (HT 12-14).
Mr. Munoz-Jurado primarily spoke Spanish. Agent Brabazon took the following precautions to ensure Mr. Munoz-Jurado understood the interview:
A. There were some parts that I would ask him in English and ask him if he understood. Then he would reply if he did or not. 90 percent of the time he did not. Then I would ask him in Spanish and ask him if he understand [sic] my question. Or if he answered my question before I asked him if he understood it and I knew he understood my question. And then I would repeat his answer to him and ask him if that was correct, if I understood it correctly, to verify.
Q. When you repeated his answer to him, was that in Spanish or English?
Q. When you asked him if he understood, was that in Spanish or English?
Q. Did you ask him if he understood at each point in the process?
A. I can't recall if at each point after each sentence or anything to that nature. I can't recall.
Q. Is it your normal practice to pause in the interview or wherever you might be in the conversation if the individual indicates in any way they do not understand?
A. Yes. And if they don't understand or we are not understanding their -- the answer-question situation, we will -- there's a Spanish language Google translation on the Internet; we will go in there and type it in to verify this is what's being said or this is what's understanding [sic] to verify that we know what's being said.
As set out in the I-213 form, Agent Brabazon collected a variety of information from Mr. Munoz-Jurado. (HT 65:2-14; 66:6-14). Agent Brabazon also questioned Mr. Munoz-Jurado about his current mailing address.
(HT 66:15-18). The interviewing agent always asks this question as it is important to obtain a correct mailing address for future correspondence, particularly in the event the interviewee is released from custody. (HT:66:19-25: 67:1-8). On the I-213 form, Agent Brabazon indicated Mr. Munoz-Jurado provided an address of "714 Columbia Street, Keystone, South Dakota, 57751."*fn11 (Exhibit 2 at p. 2). Mr. Munoz-Jurado testified he gave his P.O. Box number to Agent Brabazon. (HT 38:6-11).*fn12
In addition, the interviewing agent must ascertain whether the interviewee has a claim of credible fear of returning to his or her home country. (HT 67:15-17). ICE provides guidance and instruction to agents on how to make this determination. (HT 67:24-25; 68:1-2). To ascertain whether the interviewee has a claim of ...