IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

PORTLAND DIVISION 

) 

) 

) CASE NO. 3:14-cr-00400-JO 

) 

) 

) OPINION AND ORDER 

JUAN FRANCISCO AGUIRRE-VELASQUEZ ) 

) 

) 

Defendant. ) 

JONES; Judge: 

Indicted on one count of Illegal Reentry, a violation of 8 U.S.C. § 1326, Juan Francisco 

Aguirre-Velasquez ("defendant"), filed a Motion to Dismiss the Indictment (#15) on the basis 

that his previous removal proceeding violated his due process rights. Upon careful review of the 

record, I conclude defendant's previous removal proceeding did not violate his due process 

rights. For the reasons set fo1ih below, defendant's motion is DENIED. 

Background 

Defendant was bom in San Miguel, El Salvador on April 12, 1979. To say his childhood 

was difficult understates his reality. Due to violence in the region, his family abandoned their 

home, leaving defendant behind with relatives. Conscripted into the military as a child, he 

fought for a year, deserted after being tmiured, joined the resistance fighters, was recaptured by 

the military and finally escaped to Guatemala. Between 1988 and 1997, he moved back and 

foiih from El Salvador to Guatemala and Mexico looking for work. In 1997, while working in 

1 Opinion and Order 

Case 3:14-cr-00400-JO Document 22 Filed 10/06/15 Page 1 of 9
El Salvador, he received a death threat and fled. He crossed the border into the United States in 

June, 1997. 

In January 1999 defendant was aiTested on drug charges. He pleaded no contest to two 

counts of Delivery of a Controlled Substance and received a sentence of 36 months' probation. 

Dep01tation procedures began soon thereafter. At the removal hearing before the Immigration 

Cornt on October 27, 1999, defendant offered his "Application for Asylum and for Withholding 

of Removal" ( # 17-1 ), suppmted by a handwritten statement which outlined his history in El 

Salvador and fears of future reprisals. Immigration Judge ("IJ") Michael Bennett advised 

defendant of his right to an attorney, his probable ineligibility for asylum due to his drug 

convictions, and his possible eligibility for withholding of removal. IJ Bennett asked defendant 

ifhe wished to submit his application for withholding ofremoval, to which defendant answered 

in the affirmative. IJ Bennett set a hearing on the merits of the application for November 17, 

1999. 

At the hearing on the merits, IJ Bennett made findings in accordance with 8 U.S.C. § 

1228. First, IJ Bennett informed defendant that he was ineligible for asylum: 

The immigration service has submitted records which appear to be in 

your name and they relate to you over the sale of, the sale of heroin or 

cocaine on at least two different occasions. There were many other 

counts dismissed. If that is found to be correct ... all you're asking 

for is the right to stay her [sic] detained .... [W]ith those 

convictions, you're not eligible for any release under immigration law 

[ e ]ven if you were to prevail in your case. Then the cornt would have 

to determine whether the sale of those drugs is particularly serious 

and in most cases it has been found to be so. So then you would only 

be asking for the right to be detained as long as you wanted to stay 

here. 

(# 17-2, p.5). 

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Case 3:14-cr-00400-JO Document 22 Filed 10/06/15 Page 2 of 9
After a lengthy discussion about defendant's drug convictions, IJ Bennett dete1mined the 

convictions were for "particularly serious crimes." Id. at 7. Next, IJ Bennett info1med 

defendant: 

So now, without a doubt your case is ... about ... witholding of 

removal. Your case is only about requesting to stay locked up in the 

United States instead of being returned to El Salvador. And there is no 

provision to let you out .... And that is called deferred removal ... 

meaning that ifI find in your favor and things change, then you'd be 

sent back to El Salvador anyway. But you'd be locked up here for 

your own protection until that time. 

Id. at 8. IJ Bennett then asked defendant, "Do you want to pursue a case for the opportunity to 

stay here locked up indefinitely?" At this point, defendant withdrew his request for withholding 

of removal and acquiesced in his removal. On January 14, 2000, defendant was removed to El 

Salvador. 

On August I 0, 2014, Immigration and Customs Enforcement ("ICE") discovered 

defendant back in the United States without obtaining permission to do so legally. He was 

indicted on one count of violating 8 U.S.C. § 1326 (Illegal Reentry). He made his initial 

appearance in United States District Court on November 7, 2014, entered a Not Guilty plea and 

was released on pretrial supervision. Defendant filed this Motion to Dismiss Indictment (#15) 

claiming the removal proceedings underlying the pending Illegal Reentry charge violated his 

right to Due Process. 

Discussion 

A. Legal Standard 

An alien who "has been denied admission, excluded, deported or removed" commits the 

crime of Illegal Reentry ifthe alien "enters, attempts to enter, or is at any time found in, the 

United States." 8 U.S.C. § 1326(a). An alien defendant prosecuted for illegal reentry may not 

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Case 3:14-cr-00400-JO Document 22 Filed 10/06/15 Page 3 of 9
collaterally attack the underlying deportation 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 oppot1unity for judicial review; and (3) the entry of the order was fundamentally 

unfair." 8 U.S.C. § 1326(d); United States v. Gomez, 757 F.3d 885, 892 (91

h Cir. 2014). An alien 

in removal proceedings has a due process right to be infmmed of "his or her ability to apply for 

relief from removal." United States v. Ubaldo-Fogueroa. 364 F.3d 1042, 1050 (91

h Cir. 2004). 

An IJ must inform an alien of apparent eligibility for relief and failure to do so is a denial of due 

process that invalidates the underlying depot1ation proceeding. United States v. 1'.1uro-Inclan, 

249 F.3d 1180, 1183-84 (9th Cir. 2001). However, an alien's due process rights are not violated 

if an IJ infotms him, based on controlling law at the time of the removal hearing, that he is 

ineligible for relief, even if post-removal changes in the law alter that analysis. United States v. 

Lopez-Velasquez, 629 F.3d 894 (91

h Cir. 2010). 

B. Analysis 

Defendant contends his initial removal proceeding in 1999 violated his right to due 

process because IJ Bennett erroneously informed defendant that he would be indefinitely 

detained should he prevail on his request for withholding of removal. Defendant claims this was 

an incorrect statement of the law. 

In 1999, an alien subject to depot1ation could apply for (I) asylum or (2) withholding of 

removal under the Immigration and Nationality Act ("INA") or the U.N. Convention Against 

Torture ("CAT"). 8 C.F.R. § 208.3 (1999). Then, as now, aggravated felons were ineligible for 

asylum, 8 C.F.R § 208.13(c)(2)(D) (1999), and drug trafficking crimes were considered 

aggravated felonies. 8 U.S.C. § 1101(a)(43)(B) (1999). Aliens were eligible for withholding of 

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Case 3:14-cr-00400-JO Document 22 Filed 10/06/15 Page 4 of 9
removal ifthe Attorney General decided the alien's "life or freedom would be threatened in the 

proposed country of removal on account of race, religion, nationality, membership in a particular 

social group, or political opinion." 8 U.S.C. § 1231 (b )(3)(A) (1999). However, if an alien was 

convicted of a "particularly serious crime," that alien was "considered to constitute a danger to 

the community." 8 U.S.C. § 1231(b)(3)(B)(ii) (1999). 1 Ifso found, the alien was mandatorily 

denied withholding of removal under either section 241(b)(3) of the INA or the CAT. 8 C.F.R. § 

208.16( c )(2) (1999). If an alien received a mandatory denial when applying for withholding of 

removal, he or she still could have received, under the CAT alone, a "Defe1rnl of Removal." 8 

C.F.R. § 208.l 7(a) (2000)(effective date of the regulation Feb. 19,1999). However, deferral of 

removal detained an alien indefinitely in the United States until it no longer seemed more likely 

than not that the alien would be t01iured if sent back or the alien terminated the deferral. 8 

C.F.R. § 208.17 (2000)(effective date of regulation Feb. 19,1999). The regulation provided in 

pertinent pmi that deferral of removal "will not necessarily result in the alien being released from 

custody of the Service ifthe alien is subject to such custody." 8 C.F.R. § 1208.17(b)(ii) (2000) 

(effective date of regulation Feb. 19,1999). 

At defendant's removal hearing, IJ Bennett dete1mined that defendant's two 1999 

convictions of Delivery of a Controlled Substance were aggravated felonies under 8 U.S.C. 

§l 10l(a)(43)(b), making him ineligible for asylum.(# 17-2, p. 5). IJ Bennett then turned to 

whether defendant was eligible for withholding of removal. IJ Bennett deemed defendant's 

'The rule states: "For purposes of clause (ii), an alien who has been convicted of an aggravated 

felony for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 

years shall be considered to have committed a pmiicularly serious crime. The previous sentence 

shall not preclude the Attorney General from determining that, notwithstanding the length of 

sentence imposed, an alien has been convicted of a pmiicularly serious crime." 8 U.S.C. § 

123l(b)(3)(B)(emphasis supplied). Thus, defendant's sentence of36 months' probation did not 

preclude IJ Bennett from dete1mining defendant's drug convictions to be pmiicularly serious 

crimes. 

5 Opinion and Order 

Case 3:14-cr-00400-JO Document 22 Filed 10/06/15 Page 5 of 9
convictions "particularly serious," making him ineligible for withholding oftemoval. (# 17-2, p. 

7). Lastly, IJ Bennett assessed defendant's options regarding deferral of removal. He correctly 

informed defendant that "now, without a doubt your case is not about even getting out .... Your 

case is only about requesting to stay locked up in the United States instead of being returned to 

El Salvador. And there is no provision to let you out .... And that's called deferred removal." 

(# 17-2, p. 8). IJ Bennett continued, "ifI find in your favor and things change, then you'd be 

sent back to El Salvador anyway. But you'd be locked up here for your own protection until that 

time." (#17-2, p. 8). Following IJ Bennett's co1Tect identification of defendant's options, 

including being detained indefinitely pursuant to a deferral of removal, defendant withdrew his 

application for asylum and withholding of removal. Following the hearing, defendant was 

properly removed from the United States. 

Defendant contends his initial removal proceeding violated his right to due process 

because IJ Bennett erroneously informed him that he would be indefinitely detained should he 

prevail on his request for withholding of removal. Defendant, citing lvfa v. Reno, 208 F.3d 815 

(9111 Cir. 2000) <ind Zadvydas v. Davis, 533 U.S. 678 (2001), argues this was an incorrect 

statement of the law because immigration statutes do not perrnit unlimited indefinite detention. 

Defendant acknowledges that the opinions in both 1Vfa and Zadvydas were handed down after IJ 

Bennett inforrned defendant of his options for deferred removal, but asserts the precedent is 

retroactive under the principles announced in United States v. Aguilera-Rios, 769 F.3d 626, 631-

33 (9111 Cir. 2014). Had IJ Bennett instructed the defendant after 2000 that his options were 

indefinite detention or withdrawing his application for withholding of removal, the instruction 

would have been erroneous and defendant could collaterally attack this charge for illegal reentry. 

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Case 3:14-cr-00400-JO Document 22 Filed 10/06/15 Page 6 of 9
However, that is not our case and Aguilera-Rios does not provide the retroactive relief defendant 

seeks. 

In cases regarding an IJ's duty to inform an alien as to the alien's eligibility for relief 

from removal, an IJ must provide accurate infmmation under the applicable law at the time of 

the deportation hearing. Lopez-Velasquez, 629 F.3d at 897. Furthermore, an IJ need not 

anticipate future changes in law when determining an alien's apparent eligibility for relief from 

removal. Lopez-Velasquez, 629 F.3d at 901. Us are not expected to be clairvoyant when 

discharging their duty to inform. Lopez-Velasquez, 629 F.3d at 900. Only in narrow 

circumstances have subsequent precedents been applied in depottation cases. Those cases 

concern NOT the duty to inform the alien of his eligibility for relief in a removal proceeding, but 

whether the alien was removable at all. United States v. Aguilera-Rios, 769 F. 3d 626, 631 (9111 

Cir. 2014). 

Aguilera-Rios illustrates the limited exception to the rule that subsequent statutory 

interpretation will not be applied retroactively to invalidate a prior removal order. AguileraRios, a lawful permanent resident, was convicted in 2005 of unlawful firearms possession in 

violation of California Penal Code. Based on the firearms violation, Aguilera-Rios was 

depotted. Six years later, he was convicted of attempted entty after deportation in violation of 8 

U.S.C. § 1326(d). Aguilera-Rios collaterally attacked the validity of the 2005 depmtation order 

on the grounds that the federal definition of a firearm specifically exempted antique firearms, 

while the California definition of a fireatm did not. Thus, a person could be convicted under the 

California Penal code for conduct that did not fall within the federal firearms ground of removal. 

After Aguilera-Rios's 2005 deportation, the Supreme Court issued its decision in lvfoncrieffe v. 

Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727 (2013), concerning application of the categorical 

7 Opinion and Order 

Case 3:14-cr-00400-JO Document 22 Filed 10/06/15 Page 7 of 9
approach in immigration cases. Pursuant to }vfoncriejfe, any conviction under a state fireaims 

statute lacking an exception for antique firemms was not a categorical match for the federal 

firemms ground of removal. The court invalidated the 2005 removal order and, lacking a 

predicate element for illegal reentry, reversed Aguilera Rios's conviction for attempted entry 

after depottation. Aguilera-Rios, 769 F.3d at 637. 

For defendant here to come within the narrow exception set out in Aguilera-Rios 

regarding the retroactive application of statutory interpretation, he would need to show that a 

statutory interpretation, subsequent to his I 999 dep01tation, effectively precluded Delivery of a 

Controlled Substance as a basis for a removal order. In other words, he would need to show that, 

had the new statutory interpretation set out in }.fa and Zadvydas been applied in I 999, he would 

not have been removable at all. He has not done so. In this case, the new statutory interpretation 

defendant seeks to apply retroactively deals with the substance of the information the IJ 

delivered to defendant, namely the duration of time an alien could be detained pursuant to 

deferral of removal. This new statutory interpretation does nothing to invalidate the basis for 

defendant's removal, the drug offenses, and should not be applied retroactively. Because IJ 

Bennett fully and accurately infotmed defendant of his eligibility for relief from removal at the 

time of the hearing, defendant was not denied his right to due process. 

2 

2 Defendant cites Van Eeton v. Beebe, 49 F. Supp 2d I I86 (D. Or. I999) for the proposition that 

the precedent in Oregon in I 999 was that mandatory detention in immigration proceedings 

violated due process. Judge Parmer' s ruling, while informative, did not set precedent in Oregon. 

See, Hart v. 1Vfassanari, 266 F.3d 1155, l I63 (91

h Cir. 2001) (no trial comt decisions are binding 

precedent.) Even as late at 2001, federal comts were undecided as to whether mandatory 

detention violated due process. "Federal comts are split over this issue. Several district comts ... 

have determined the mandatory detention without bond violates an alien's right to due process of 

law and is unconstitutional. See Radoncic v. Zemski, 121 F.Supp.2d 8I4 (E.D.Pa.2000); JuarezVasquez v. Holmes, No. OO-CV-4727, 2000 U.S. Dist. LEXIS I64I 7 (E.D.Pa. Nov. 3, 2000); 

Koita v. Reno, I13 F.Supp.2d 737 (M.D.Pa.2000); Son Vo v. Greene, I09 F.Supp.2d I281 

(D.Colo.2000); Welch v. Reno, IOI F.Supp.2d 347 (D.Md.2000); Chukwuezi v. Reno, No. 3: CV8 Opinion and Order 

Case 3:14-cr-00400-JO Document 22 Filed 10/06/15 Page 8 of 9
Conclusion 

At the time of defendant's 1999 hearing on removal, IJ Bennett correctly info1med 

defendant of his eligibility for relief from removal, including the fact that he would be 

indefinitely detained. The changes in the interpretation of the immigration statutes that no longer 

allow for indefinite detention in deferral of removal cases, as enunciated in lY!a and Zadvydas, 

cannot be applied retroactively. Defendant's due process rights were not violated and 

defendant's prior removal order was valid. Defendant's Motion to Dismiss the Indictment (#15) 

is DENIED. 

IT IS SO ORDERED. 

,, 

DATED this _f_ day of October, 2015. 

L--- L' 

Robert E. Jones 

Senior District Court Judge 

99-2020, 2000 U.S. Dist. LEXIS 15432 (M. D.Pa. May 16, 2000); Bouayad v. Holmes, 74 

F.Supp.2d 471 (E.D.Pa.1999); Rogowski v. Reno, 94 F.Supp.2d 177 (D.Conn.1999); Nhoc Danh 

v. Demore, 59 F.Supp.2d 994 (N.D.Cal.1999); Van Eeton v. Beebe, 49 F.Supp.2d 1186 

(D.Ore.1999). Several other courts, including the seventh and eleventh circuits, have held 

otherwise. See e.g., Parra v. Perryman, 172 F.3d 954 (7th Cir.1999); Richardson v. Reno, 162 

F.3d 1338, 1363 n. 119 (I Ith Cir.1998); Avramenkov v. INS, 99 F.Supp.2d 210 (D.Conn.2000); 

Okeke v. Pasquarell, 80 F.Supp.2d 635 (W.D.Tex.2000); Reyes v. Underdown, 73 F.Supp.2d 653 

(W.D.La.1999); Diaz-Zaldierna v. Fasano, 43 F.Supp.2d 1114 (S.D.Cal.1999)." Patel v. 

Zemski, No. CIV.A.01-405, 2001WL503431, at *2 (E.D. Pa. Dec. 19, 2001). 

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