IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America

v. Case No. 2:13-cr-255

Rodolfo Gonzales-Campos

OPINION AND ORDER

Defendant Rodolfo Gonzales-Campos was charged by indictment

returned on November 7, 2013, with one count of illegally reentering the United States after being deported following his

conviction of a felony offense, in violation of 8 U.S.C. §1326(a)

and (b)(1). The indictment charges:

1. On or about the 19th day of September, 2013, in the

Southern District of Ohio, the defendant, RODOLFO

GONZALES-CAMPOS, an alien who had previously been

deported from the United States after having been

convicted of a felony crime, knowingly and unlawfully was

found in the United States at Columbus, Ohio, the said

defendant having not obtained the consent of the Attorney

General of the United States or the Secretary of the

Department of Homeland Security for reapplication for

admission into the United States.

2. Defendant RODOLFO GONZALES-CAMPOS, was convicted on

or about December 4, 2012, in the United States District

Court for the Southern District of Ohio, in Case No.

2:12-cr-204, of illegal reentry of a removed alien.

3. On or about March 23, 2010, April 3, 2010, February

14, 2012, and December 5, 2012, this defendant was

deported from the United States after having been found

illegally within the borders of the United States.

This matter is before the court on defendant’s motion to dismiss

the indictment.

I. History of the Case

Defendant contests the validity of the removal order entered

against him on March 16, 2010. The record reveals that on March

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12, 2010, defendant was discovered by Immigrations and Customs

Enforcement (“ICE”) in Columbus, Ohio when he was released from

jail after being arrested on OMVI charges. Doc. 18, Ex. H. A

notice to appear at removal proceedings in Cleveland, Ohio, was

issued to defendant, charging him with being a native of Mexico who

was not a citizen or national of the United States and who had not

been admitted to the United States. Doc. 18, Ex. A. Defendant was

ordered detained in the custody of the Department of Homeland

Security pending the hearing. Doc. 18, Ex. B. The record includes

a form in Spanish which advised defendant of his right to a hearing

before an immigration judge, informed him that he could be detained

or released on bond until the date of the hearing, and informed him

that he had a right to consult with an attorney, that he would be

provided with a list of attorneys who could represent him at little

or no cost, that he had the right to consult with his country’s

consular service, and that he could use the telephone to call an

attorney or his consular service. Defendant signed the form,

thereby admitting that he was in the United States illegally, that

he was not afraid to return to his country, that he was renouncing

his right to a hearing before the immigration court, and that he

wanted to return to his country as soon as his departure could be

arranged. The form is also signed by Immigration Officer Luke

Affholter, who certified that the notice was read by defendant, and

that he also read the form to defendant in Spanish. Doc. 18, Ex.

C.

The record also includes a form entitled “Stipulated Request

for Removal Order and Waiver of Hearing.” Doc. 18, Ex. D. The

form is written in both English and Spanish. By signing the form,

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defendant certified that the information he provided for the form

was correct. Ex. D, ¶ 17. That information included the

following: He was at least 18 years of age. ¶ 1. He received a

copy of the March 12, 2010, notice to appear, with his full and

correct name stated thereon. ¶ 2. He was advised of his right to

be represented by a lawyer or other qualified person, and was

provided a copy of a list of free legal providers, but waived his

right to be represented in this matter. ¶3. He was advised that

by signing the request, he was giving up rights he would have in a

hearing before an immigration judge, including his right to

question witnesses, to offer and object to evidence, and to require

the government to prove his removability. He knowingly waived

these rights, and requested that his removal proceedings be held

without a hearing and that the immigration judge issue an order

based solely on the written record. ¶ 4. Defendant agreed that

all of the factual allegations in the Notice to Appear were true

and correct, and he conceded that he should be removed from the

United States. ¶ 5. Defendant’s eligibility or ineligibility for

relief from removal and other benefits for which he may be

eligible, including voluntary departure, had been explained. It

had been determined that he did not have derived or acquired United

States citizenship. ¶ 6. Defendant was not eligible for, or

waived his right to apply for, relief from removal, and was making

no application for relief from removal or to depart voluntarily. 

¶ 7. Defendant consented to the introduction of the Stipulated

Request as an exhibit to the record of proceedings. ¶ 8. 

Defendant designated Mexico as his country of removal, and

indicated that he had no fear of returning to that country. ¶ 9. 

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Defendant requested that his removal be based solely on the

stipulated request, and acknowledged that by signing the stipulated

request, he was giving up the right to appear before an immigration

judge and would be removed from the United States without a

hearing. ¶ 10. Defendant agreed that he would accept a written

order for removal as a final disposition of the removal

proceedings. ¶ 11. Defendant understood that the consequences of

the stipulated request and waiver of hearing would be his removal

from the United States, and acknowledged that he was making the

request voluntarily, knowingly and intelligently. ¶ 12. Defendant

understood that by signing the stipulated request, he acknowledged

receipt of the statement of appeal rights, and that he was waiving

his right to appeal the written order for his removal from the

United States. ¶ 13. Defendant understood that because of the

removal, he would be barred from returning to the United States for

ten years unless he sought a waiver from the Attorney General. ¶

14. Defendant understood that if he returned to the United State

without the Attorney General’s consent, he could be fined and/or

imprisoned and barred from re-entering the United States for twenty

years. ¶ 15. Defendant acknowledged that he had read, and had

read to him, the entire document in a language he understood, and

that he understood its consequences. He agreed that he was

submitting the request for removal voluntarily, knowingly, and

intelligently, and he realized that by signing it, he would be

removed from the United States. ¶ 16.

The stipulated request includes a certification signed by

defendant, certifying that the stipulated request was translated to

him from English to Spanish, and that all the information he had

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provided was true and correct. Next to his signature, defendant

wrote, “Yo voy para Mexico” or “I go to Mexico.” The form also

contains the signature of Officer Affholter, who certified that he

had explained the contents and meaning of the document to defendant

in the language which he understands.

On March 16, 2010, Immigration Judge Thomas W. Janas issued an

order of removal. Doc. 18, Ex. E. The order noted that defendant

had submitted a stipulation in which he waived a personal

appearance before an immigration judge, and stated that he

understood the consequences of his request and entered the request

voluntarily, knowingly, and intelligently. The immigration judge

found that defendant’s waiver was voluntary, knowing and

intelligent, and found him to be removable by clear and convincing

evidence in the form of his own admissions. The immigration judge

ordered that defendant be removed to Mexico. A warrant of removal

was issued on March 23, 2010. Doc. 18, Ex. G. Defendant was

removed from the United States at Laredo, Texas, on March 23, 2010. 

Doc. 18, Ex. F.

The record further reveals that on March 30, 2010, defendant

was arrested by a United States border patrol agent after he

illegally re-entered the United States by climbing over the

boundary fence. Doc. 20, Ex. A. Defendant was advised of his

right to speak with the Mexican consulate, and declined to do so. 

Defendant was served with a notice of intent to reinstate the prior

removal order. This form indicated that defendant had previously

been removed on March 23, 2010, under a removal order entered on

March 16, 2010, and that defendant illegally re-entered the United

States on March 30, 2010, near Douglas, Arizona. The form stated

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that defendant was subject to removal by reinstatement of the prior

order, and that he had a right to contest this determination by

making a statement to an immigration officer. The form was signed

by a border patrol agent, who indicated that the facts that formed

the basis of the reinstatement determination and the right to make

a statement contesting that determination, were communicated to the

defendant in Spanish. Defendant signed the form and checked the

box which indicated that he did not wish to make a statement

contesting the reinstatement determination. Defendant was removed

from Douglas, Arizona, on March 31, 2010.

The record also indicates that on April 2, 2010, defendant was

again arrested by a border patrol agent near Douglas, Arizona,

after climbing over the boundary fence. Doc. 20, Ex. B. Defendant

was advised of his right to speak with the Mexican consulate, and

declined to do so. He admitted that he entered the United States

illegally, and signed the notice of reinstatement form, indicating

that he did not want to make a statement contesting the

reinstatement determination. He was removed from the United States

at Douglas, Arizona on April 3, 2010.

Defendant was encountered again in the United States on

February 8, 2012. Defendant was targeted as a previously deported

alien by the ICE Fugitive Operations Team, and was arrested

following a traffic stop in Columbus, Ohio. Doc. 20, Ex. C. The

previous removal order was again reinstated, and defendant was

removed from the United States from Laredo, Texas, on February 14,

2012. Defendant was again arrested in Columbus, Ohio, by the ICE

Fugitive Operations Team on August 28, 2012. Doc. 20, Ex. D. He

was charged by information in the United States District Court for

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the Southern District of Ohio with unlawful re-entry after removal

in violation of 8 U.S.C. §1326(a). He pleaded guilty, and was

sentenced on December 3, 2012, to time served. See Case No. 2:12-

cr-204. He was removed from the United States later that month. 

Most recently, defendant was targeted by the ICE Fugitive

Operations Team and was arrested in Columbus, Ohio, on September

19, 2013. Doc. 20, Ex. E. His presence in the United States on

that occasion is the subject of the charge pending in the instant

case.

II. Challenge to Removal Proceedings

In a prosecution under 8 U.S.C. §1326, Congress has provided

a procedure for a limited collateral attack on an underlying

deportation order. See 8 U.S.C. §1326(d). That section provides:

In a criminal proceeding under this section, an alien may

not challenge the validity of the deportation order

described in subsection (a)(1) of this section or

subsection (b) of this section unless the alien

demonstrates that–

(1) the alien exhausted any administrative remedies that

may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was

issued improperly deprived the alien of the opportunity

for judicial review; and

(3) the entry of the order was fundamentally unfair.

Section 1326(d). “Because a final deportation order enjoys a

presumption of regularity, once the government shows that the alien

was deported while such an order was outstanding, the burden shifts

to the defendant-alien, and it is he who must prove each of

§1326(d)’s elements to overcome the presumed legality of the

earlier deportation order.” United States v. Adame-Orozco, 607

F.3d 647, 651 (10th Cir. 2010); see also United States v. MartinezRocha, 337 F.3d 566, 568 (6th Cir. 2003)(“defendant must

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demonstrate that” the three prongs of §1326(d) have been

satisfied).

As to the first element, defendant did not exhaust his

administrative remedies, but instead waived his right to appeal the

grounds on which he was removable. See Martinez-Rocha, 337 F.3d at

569. Defendant argues that he should be excused from the

exhaustion requirement because his waiver was invalid. He argues,

citing Ninth Circuit precedent, that the government bears the

burden of proving that his waiver of rights was valid. See United

States v. Ramos, 623 F.3d 672, 680 (9th Cir. 2010). However, as

noted above, the Sixth Circuit has held that it is the defendant’s

burden to prove the elements of §1326(d). See also Richardson v.

United States, 558 F.3d 216, 219 (3d Cir. 2009)(burden is on alien

to prove that written waiver was invalid); United States v. Rangel

de Aquilar, 308 F.3d 1134, 1137 (10th Cir. 2002)(noting that

defendant presented no evidence to demonstrate that her waiver was

not knowing and voluntary).

Defendant argues that the stipulation form does not provide an

adequate basis for finding that his waiver of a hearing and appeal

rights was knowing, voluntary and intelligent. He notes that no

written copy of the statement of appeal rights was provided in

discovery. He also argues that the immigration judge did not

comply with 8 U.S.C. §1003.25(b) because he could not have

reasonably found, based on the written stipulation, that

defendant’s waiver was knowing, voluntary, and intelligent. 

Defendant does not factually attack the stipulated request

form or its contents. He does not contend, for example, that he

did not understand the form, or that he did not read it, or that

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the statements he reportedly made in the form were inaccurately

recorded, or that the officer failed to read the form to him in a

language he could understand. The form is written in both English

and Spanish. This is not a case where the form was written solely

in English, thus placing the accuracy of the immigration officer’s

translation at issue. Defendant signed a certification

acknowledging that he had read the form, and that the form was also

read to him in a language he understood. Defendant initialed each

paragraph. This suggests that the immigration officer’s

explanation of the form was thorough rather than cursory. Although

the written statement of appeal rights is not in the record,

defendant acknowledged receipt of that statement in the stipulated

request and stated that he was waiving his right to appeal. See

Doc. 18, Ex. D, ¶ 13. The fact that the appeal rights form was not

found in defendant’s immigration file suggests that the form was in

fact given to him. Its absence does not cast doubt on its

existence.

In signing the stipulated request form, defendant certified

that he was submitting the request for removal voluntarily,

knowingly, and intelligently, and that he realized that by signing

the document, he would be removed from the United States without a

hearing before an immigration judge. Doc. 18, Ex. D, ¶¶ 10, 16. 

He also certified that he understood that by signing the form, he

would be removed from the United States and would be barred from

returning for ten years unless he sought a waiver from the Attorney

General. Doc. 18, Ex. D., ¶ 14. The immigration officer also

signed the form, certifying that he had explained the contents and

meaning of the document to defendant in a language which he

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understood. The stipulation form is sufficient to support a

finding that defendant’s waiver of rights was knowing, voluntary

and intelligent.

Defendant also notes that if he had not signed the stipulated

request, other immigration options which did not have the negative

consequences of removal, such as voluntary departure, might have

been available to him. However, this does not mandate a finding

that defendant’s waivers were not knowing, voluntary or

intelligent. As the Sixth Circuit stated in Martinez-Rocha, “a

waiver need not be the best choice under the circumstances in order

for it to be ‘considered and intelligent.’” 337 F.3d at 570

(citing United States v. Turner, 287 F.3d 980, 984 (10th Cir.

2002)). When removal proceedings were initiated, defendant was

held in custody, and no hearing date had been set before the

immigration judge. Defendant may have concluded that, instead of

risking a lengthy period of incarceration while pursuing other

avenues of relief, the most expeditious way of securing his release

from custody was to agree to a stipulated request for removal. In

fact, defendant was removed to Mexico eleven days after he was

taken into custody. He was then able within the next two weeks to

make two attempts to illegally re-enter the United States, and, at

some point, he was successful in doing so. 

The record also indicates that the immigration judge complied

with §1003.25(b). That section provides that an immigration judge

may enter an order of removal stipulated to by the alien. The

immigration judge may enter the order without a hearing based on a

review of the charging document, the written stipulation, and

supporting documents, if any. §1003.25(b). If the alien is

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unrepresented, the immigration judge “must determine that the

alien’s waiver is voluntary, knowing, and intelligent.” 

§1003.25(b). Nowhere does §1003.25(b) state that the immigration

judge is required to hold a hearing in the case of an unrepresented

alien, or is required to address an unrepresented alien personally

before making that determination. Rather, the immigration judge

can rely on other evidence, including a written declaration by the

immigration officer of the circumstances surrounding the waiver. 

See United States v. Gomez, 732 F.3d 971, 983 (9th Cir. 2013).

In his decision, the immigration judge stated that defendant’s

stipulated request was introduced as an exhibit in the record of

proceedings. Doc. 18, Ex. E. That stipulated request included the

certification of the immigration officer that he had explained the

contents and meaning of the document to defendant in a language

which he understood. The stipulated request also contained the

certification of the defendant that the form had been translated to

him in the Spanish language, and that all of the information he

gave in the stipulated request was true and correct. The

immigration judge specifically found that defendant’s waiver was

“voluntary, knowing, and intelligent.” The judge noted that

defendant conceded service of the charging document, admitted that

all of the allegations therein were true, and conceded that he was

removable. Doc. 18, Ex. E. The immigration judge did not err in

concluding, based upon the signed stipulated request, that

defendant’s waiver of rights was knowing, voluntary and

intelligent.

Defendant has also failed to show that he exhausted

administrative remedies which would have been available to him,

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notwithstanding his waiver, or that the deportation proceedings at

which the order was issued improperly deprived him of the

opportunity for judicial review. Defendant’s claim that his

stipulated request for a removal order and waiver of rights,

including any waiver of appeal, was not voluntary, knowing, and

intelligent, could have been raised in a timely appeal to the Board

of Immigration Appeals, and then in a timely petition for review in

the court of appeals pursuant to 8 U.S.C. §1252(b)(1). See JuarezChavez v. Holder, 515 F.App’x 463, 466 (6th Cir. 2013). Even

aliens who have been removed may continue to pursue their petitions

for review. Nken v. Holder, 556 U.S. 418, 435 (2009). Defendant

could have filed a motion to reconsider the removal within thirty

days of the entry of the final administrative order of removal. 8

U.S.C. §1229a(c)(6)(A) and (B). Defendant could also have filed a

motion with the Board of Immigration Appeals within ninety days of

the entry of the removal order to reopen the matter of his removal.

See 8 U.S.C. §1229a(c)(7)(A) and (C)(i). Defendant could have

filed such a motion from Mexico. Cordova-Soto v. Holder, 732 F.3d

789, 794 (7th Cir. 2013); Pruidze v. Holder, 632 F.3d 234, 235 (6th

Cir. 2011)(Board of Immigration Appeals has jurisdiction to

consider alien’s petition to reopen even when alien is no longer in

the United States). Defendant has not shown that he pursued any of

the above procedures to contest his removal.

As to the final §1326(d) factor, defendant argues that the

immigration proceedings were fundamentally unfair. The fundamental

unfairness prong requires a showing of procedural error and

prejudice. United States v. Luna, 436 F.3d 312, 319 (1st Cir.

2006); see also United States v. Arita-Campos, 607 F.3d 487, 493

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(7th Cir. 2010)(to establish fundamental unfairness, defendant must

show that his due process rights were violated and that he suffered

prejudice from the deportation proceedings). A deportation

proceeding is a civil action, and the procedures required are as

delineated by Congress and the Attorney General. Rangel de

Aguilar, 308 F.3d at 1137 (10th Cir. 2002). Waivers made in a

stipulated request are not rendered unfair because they were taken

by an immigration officer rather than a neutral magistrate. See

id. at 1138.

The only prejudice cited by defendant resulting from the

removal proceedings in his case is that he was not advised by the

immigration judge of the possibility of voluntary departure, and

that, but for his stipulated request, he would have been eligible

for a discretionary grant of voluntary departure pursuant to 8

U.S.C. §1229c(a). However, the stipulated request signed by

defendant included language that defendant had “been explained my

eligibility or ineligibility for relief from removal and the

benefits for which I may be eligible including, but not limited to,

voluntary departure[.]” Doc. 18, Ex. D, ¶ 6. The stipulated

request also stated, “I make no application for relief from removal

such as would allow me to remain in the United States or to depart

voluntarily.” Ex. D, ¶ 7. This indicates that defendant was aware

of the option of requesting a voluntary departure, yet chose

expedited removal through his stipulated request.

In addition, the Sixth Circuit has held that an alien has no

constitutionally-protected liberty interest in obtaining

discretionary relief from deportation. Ashki v. Immigration and

Naturalization Service, 233 F.3d 913, 921 (6th Cir. 2000); see also

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United States v. Galaviz-Galaviz, 91 F.3d 145 (table), 1996 WL

413478 at *3 (6th Cir. July 23, 1996)(defendant’s deportation

hearing was not fundamentally unfair; immigration judge was not

required to explore what possible theories might be available to

find an alien eligible for discretionary relief). The majority

position is that a defendant has no constitutionally-protected

liberty interest in obtaining discretionary relief from

deportation, including voluntary departure. See United States v.

Barba, No. 3:08-CR-46 (unreported), 2009 WL 1586793 at *9-11

(E.D.Tenn. June 3, 2009)(defendant had no constitutionally

protected due process interest in being advised by immigration

judge of the possibility of voluntary departure); see also AritaCampos, 607 F.3d at 493 (because the availability of voluntary

departure is a discretionary decision, defendant’s allegation that

he was unable to seek voluntary departure did not establish a due

process violation). The defendant has failed to show that the

removal proceedings were fundamentally unfair or that he suffered

prejudice as the result of any procedural error.

III. Conclusion

In accordance with the foregoing, the court finds that

defendant has failed to sustain his burden under §1326(d) of

establishing the elements necessary for a successful collateral

attack on the removal order in his case. The motion to dismiss the

indictment (Doc. 18) is denied.

IV. Motion to Hold Case in Abeyance

Defendant has also moved to hold this case in abeyance pending

the outcome of his motion filed pursuant to 28 U.S.C. §2255 to

vacate his conviction for illegal re-entry in Case No. 2:12-cr-204. 

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In that case, defendant argues that his attorney was ineffective in

advising him to plead guilty rather than attacking his removal

order under §1326(d). Defendant asks to hold the instant case in

abeyance until the habeas proceedings are resolved.

Defendant notes that in responding to his motion to dismiss in

this case, the government argued that defendant waived any due

process challenge to the validity of the removal proceedings by

pleading guilty in the previous case. However, this court did not

rely on the government’s waiver argument in concluding that

defendant has failed to establish the §1326(d) elements for a

collateral attack of the removal order in this case. This court’s

ruling on the motion to dismiss is independent of any argument

which might be made concerning the validity of the defendant’s

prior guilty plea. 

The indictment in the instant case was returned on November 7,

2013. The previous conviction in Case No. 2:12-cr-204 is alleged

as the prior felony conviction in the instant case which increases

the maximum possible penalty to ten years incarceration. Defendant

filed his motion to vacate in Case No. 2:12-cr-204 on December 17,

2013. The §2255 proceedings are not subject to the speedy trial

provisions of 18 U.S.C. §3161. The §2255 proceedings could go on

for a considerable period of time while the allegations of

ineffective assistance of counsel are addressed, or while an appeal

is pursued. The judge assigned to that case could conceivably find

that circumstances existed in that case which warrant a finding

that counsel was not ineffective in advising defendant to plead

guilty without resolving the issue of the validity of the removal

proceedings.

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In contrast, the instant criminal proceedings are subject to

the speedy trial provisions of 18 U.S.C. §3161. This court has the

authority to address defendant’s §1326(d) argument in this case,

and has done so. At this point, defendant’s 2012 conviction is

valid and has not been set aside. If defendant is convicted in

this case, he can appeal this court’s ruling on his §1326(d)

challenge. The court concludes that it would not be in the best

interests of the defendant or the public in a speedy trial to

indefinitely delay further proceedings on this indictment pending

the outcome of defendant’s §2255 petition. Such a delay would pose

the risk that witnesses or evidence might become unavailable, and

would result in the defendant being held for a substantial period

of time in a state facility under harsher conditions than those

found in a federal institution. The motion to hold the instant

case in abeyance (Doc. 21) is denied. 

Date: March 18, 2014 s/James L. Graham 

 James L. Graham

 United States District Judge 

 

 

 

 

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