IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

UNITED STATES OF AMERICA, ) 

) 

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

) 

v. ) 

) OPINION AND ORDER 

JUAN FRANCISCO AGUIRRE-VELASQUEZ ) 

) 

) 

Defendant. ) 

JONES, Judge: 

Juan Francisco Aguine-Velasquez ("defendant") filed a Motion for Reconsideration 

(#25) on the basis that a previous deportation proceeding violated his due process rights. For the 

reasons set fmih below, defendant's motion is DENIED. 

Prior Proceedings 

On November 17, 1999, defendant appeared at a removal hearing before the Immigration 

Court. Immigration Judge ("IJ") Michael Bennett found that defendant's prior convictions for 

Delivery of a Controlled Substance constituted "patiicularly serious crimes." (#17-2 at 7). The 

IJ advised defendant that he could either pursue a case to be locked up indefinitely or return to El 

Salvador. (#17-2 at 8). Based on that advice, defendant withdrew his application. Defendant 

elected to return to El Salvador, and he was removed on January 14, 2000. 

On August 10, 2014, Immigration and Customs Enforcement ("ICE") found defendant 

back in the United States. Defendant was indicted on one count of violating 8 U.S.C. § 1326 

1 Opinion and Order 
(Illegal Reentry). After making his initial appearance in the United States District Court and 

entering a Not Guilty plea, defendant filed a Motion.to Dismiss Indictment (#15), which I denied 

(#22). Defendant then filed this Motion for Reconsideration (#25). 

Legal Standard 

"Reconsideration is appropriate if the district court (1) is presented with newly 

discovered evidence, (2) committed clear eiTOr or the initial decision was manifestly unjust, or 

(3) ifthere is an intervening change in controlling law." Sch. Dist. No. JJ v. ACandS, Inc., 5 F.3d 

1255, 1263 (9th Cir.1993). While a comt is permitted to reconsider a prior order, reconsideration 

is "an extraordinary remedy, to be used sparingly in the interests of finality and conservation of 

judicial resources." Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir.2003) (citation and internal 

quotation marks omitted). A motion for reconsideration may not be used to present arguments 

that were or could have been raised in the initial motion. Jd 

Discussion 

In his motion for reconsideration, defendant reiterates his argument that the underlying 

deportation proceeding violated his due process rights. An alien who "has been denied 

admission, excluded, depo1ted or removed" commits the crime of Illegal Reentry if the 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 collaterally attack the underlying 

depo1tation 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." 8 U.S.C. § 1326(d); 

United States v. Gomez, 757 F.3d 885, 892 (91

h Cir. 2014). An underlying order is 

2 Opinion and Order 
"fundamentally unfair" if"(!) [a defendant's] due process rights were violated by defects in his 

underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." 

United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). 

This case turns on whether defendant can demonstrate that the underlying order was 

fundamentally unfair. Defendant argues that his due process rights were violated when the IJ 

infotmed him he would be detained indefinitely ifhe received defenal of removal. Specifically, 

defendant argues that (1) the Supreme Court's holding in Zadvydas should apply retroactively; 

and (2) even without retroactive application of Zadvydas, the IJ inaccurately stated the law at the 

time of defendant's underlying depottation proceeding. I conclude that Zadvydas should not 

apply retroactively, and, even assuming arguendo a due process violation occurred, no prejudice 

resulted from any alleged defect in the proceeding. 

I. Retroactive Application of Zadvydas 

Pursuant to 8 U.S.C.A. § 1231(a)(6), inadmissible or criminal aliens "may be detained 

beyond the removal period and, if released, shall be subject to [certain] terms of supervision ... 

. " In 2001, the Supreme Cou1t in Zadvydas construed this statute to include a presumptive 

reasonable time limitation for detention of six months. The Comt concluded that "once removal 

is no longer foreseeable, continued detention is no longer authorized by statute" because a 

"statute permitting indefinite detention of an alien would raise a serious constitutional problem." 

Zadvydas v. Davis, 533 U.S. 678, 690, 699 (2001). 

Defendant asserts that the Coutt's interpretation of 8 U.S.C.A. § 1231 (a)(6) in Zadvydas 

applies retroactively to his 1999 removal. However, the Ninth Circuit expressly held that a 

noncitizen's due process rights are not violated if an IJ informs him about his eligibility for relief 

based on controlling law at the time of the removal hearing. United States v. Vidal-lvfendoza, 

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705 F.3d 1012 (9th Cir. 2013) (emphasis supplied). A "removal is to be judged under applicable 

law at the time of the removal hearing ... not post-removal precedent." United States v. 

Aguilera-Rios, 769 F.3d 626, 631 (9th Cir. 2014) (intetnal quotation marks and citations 

omitted). The only exception to this rule is in cases where an IJ's finding of removability is 

rendered invalid by subsequent precedent. Vidal-lvfendoza, 705 F.3d at 1018; Aguilera-Rios, 769 

F.3d at 633. Here, the IJ's finding of removability based on defendant's drug convictions was 

legally valid in 1999 and remains so today. Accordingly, the Court's decision in Zadvydas 

cannot have retroactive effect. 

II. Law at the Time of Defendant's Underlying Deportation Hearing 

Defendant also argues that, even without retroactive application of Zadvydas, the IJ 

incorrectly stated the law at the time of defendant's underlying dep011ation hearing. At the 

deportation hearing, the IJ info1med defendant that, if he received deferral of removal, he would 

be locked up "potentially forever" in the United States, unless and until he was removed to El 

Salvador. The IJ then stated that his 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 

[defendant] out." (#17-2 at 7-8). 

Defendant claims that the IJ' s statement that defendant would be locked up "potentially 

forever" was an inaccurate statement of the law at the time of the hearing. However, in 1999, 8 

U.S.C.A. § 1231 permitted the continued detention of inadmissible or criminal noncitizens 

beyond the removal period. While some federal district courts had held that indefinite detention, 

though permitted under statute, violated due process, those decisions were not binding. See, e.x., 

Hermanowski v. Farguharson, 39 F.Supp. 2d. 148 (D. R.I. 1999); Phan v. Reno, 56 F.Supp. 2d 

1149 (W.D. Wash. 1999); Vo v. Greene, 63 F.Supp. 2d 1278 (D. Co. 1999). Moreover, other 

4 Opinion and Order 
district co mis and one federal appellate court had held otherwise. See, e.x., Zadvydas v. 

Underdmvn, 185 F.3d 279 (5th Cir. 1999); Villafuerte v. INS., 71 F.Supp. 2d 573 (W.D. La. 

1999). Significantly, no binding precedent existed at the time of defendant's removal hearing 

that either found 8 U.S.C.A. § 1231(a)(6) to be unconstitutional or construed it to contain a 

presumptive time limit. Thus, the IJ accurately stated the applicable law at the time of the 

removal hearing when he claimed that defendant could be detained indefinitely if he received 

deferral of removal. 

Defendant correctly asse1is that defenal of removal did not mandate indefinite detention. 

8 U.S.C.A. § 1231(a)(6) allowed for continued detention of inadmissible or criminal noncitizens 

beyond the removal period, but it also pennitted the release of noncitizens under certain te1ms of 

supervision. Additionally, a few months before defendant's dep01iation proceeding, the INS 

implemented regulations establishing periodic review of cases where noncitizens were detained 

beyond the 90-day detention period. See lvla v. Reno, 208 F.3d 815, 819 n.5, 820 n.8 (9th Cir. 

2000); See, also, United States Department of Justice, Immigration and Naturalization Service, 

Memorandum from Michael A. Pearson, Executive Associate Commissioner, Office of Field 

Operations, Interim Changes and Instructions for Conduct of Post-Order Custody Reviews (Aug. 

6, 1999). Thus, the only possible means by which defendant could claim that his due process 

rights were violated is by claiming that the IJ failed to info1m him that his continued detention 

would be subject to periodic review. 

I need not decide however, whether this omission constituted a due process violation, 

because defendant cannot demonstrate that he suffered any prejudice. "An alien suffers 

prejudice from a due process violation in deportation proceedings if the violation potentially 

affects the outcome of the proceedings." Perez-Lastor v. INS., 208 F.3d 773 (9th Cir. 2000). 

5 Opinion and Order 
Defendant bears the initial burden of demonstrating prejudice. United States v. Cerda-Pena, 799 

F.2d 1374 (9th Cir. 1986). 

Here, defendant has not produced any evidence to demonstrate that the IJ's failure to 

info1m him that his continued detention would be reviewed periodically potentially affected the 

outcome of the proceedings. When the IJ asked defendant if he wanted to pursue a case for 

deferral of removal, defendant stated that he wanted to return to his country because he was "not 

happy at any place." (#17-2 at 8). The IJ then asked defendant ifhe would like to go to another 

country. Initially, defendant responded in the affirmative. The IJ informed defendant that most 

likely another country would not take him, and defendant expressed his understanding. The IJ 

then told defendant that it would take "several months" to determine whether he could be 

removed to another country. At that point, defendant elected to return to his home country, El 

Salvador, explaining that it had been "a long time [he'd] been in jail now." (#17-2 at 9). 

In sum, defendant was unwilling to remain in detention for several months to see whether 

he could be transfell"ed to another country. If defendant was unwilling to remain in detention a 

few months to potentially secure his safety, then defendant cannot demonstrate that he would 

have been willing to remain in detention "indefinitely" under deferral of removal, even if he 

knew that his continued detention would be subject to periodic review. 1 In addition, under 

deferral of removal, defendant still would have been deported once an IJ dete1mined he would no 

longer more likely than not be tortured if he returned to El Salvador. Thus, even assuming 

defendant has a viable due process claim, defendant has not demonstrated prejudice, because he 

1 As described earlier in this opinion, while the Court in Zadvydas found indefinite detention to present 

constitutional concerns, indefinite detention was an accurate statement of the law at the time of defendant's 

underlying deportation hearing and it therefore presents no due process violation. Moreover, even under the rule of 

law aiticulated in Zadvydas, defendant could expect to be detained for at least six months, until he was released on 

supervision or returned to his home country. 

6 Opinion and Order 
has not shown that the outcome would have been different without the alleged violation. 

Accordingly, I deny defendant's Motion for Reconsideration. 

Conclusion 

The IJ' s affomative statements regarding indefinite detention did not violate defendant's 

due process rights, because they accurately reflected the law at the time of defendant's removal 

hearing. Moreover, even assuming there was a defect in the underlying depo1iation proceeding, 

defendant did not suffer any prejudice as a result. Accordingly, defendant has not demonstrated 

in his motion for reconsideration that the court committed clear enor or that the initial decision 

was manifestly unjust. Defendant's Motion for Reconsideration (#25) is DENIED. 

IT IS SO ORDERED. 

DATED this Jl1 day of December, 2015. 

es 

1strict Court Judge 

7 Opinion and Order