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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

United States of America, 

Plaintiff, 

v. 

Jose Sergio Calderon-Andrade, 

Defendant. 

No. CR-15-01731-001-TUC-JGZ (LCK)

ORDER 

On April 28, 2016, Magistrate Judge Bernardo P. Velasco issued a Report and 

Recommendation (“R&R”) (Doc. 38) in which he recommended denial of Defendant 

Eduardo Jose Sergio Calderon-Andrade’s Motion to Dismiss Indictment, which 

collaterally attacks the prior order of removal upon which Defendant’s pending 

indictment for illegal reentry under 8 U.S.C. § 1326(b)(2) relies. (Doc. 18.) Defendant 

filed an Objection to the R&R on May 11, 2016 and the government timely responded. 

(Docs. 39, 42.) For the reasons stated herein, the Court adopts the R&R and denies 

Defendant’s Motion to Dismiss Indictment. 

STANDARD OF REVIEW 

The Court reviews de novo the objected-to portions of the R&R. 28 U.S.C. § 

636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error the unobjected-to 

portions of the R&R. Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999); 

see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or. 1998). If the Court rejects 

the credibility findings of the magistrate judge, a de novo hearing is required. United 

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States v. Ridgway, 300 F.3d 1153, 1157 (9th Cir. 2002). 

FACTUAL BACKGROUND 

 The factual background contained in Magistrate Velasco’s R&R (Doc. 38) is 

adopted as supplemented by the additional facts stated in this Order. 

Defendant, a native and citizen of Mexico, received temporary lawful permanent 

resident status on December 2, 1990. (Docs. 42-1 & 42-2.) On April 14, 1998, U.S. 

Border Patrol agents arrested Defendant, who was using the alias Antonio AndradeCalderon, after he was found driving a U-Haul truck loaded with 19 undocumented 

aliens. (Doc. 42-4.) On April 16, 1998, Defendant, still using his alias, pled guilty to 

illegal entry under 8 U.S.C. § 1325 and was sentenced to time served. (Doc. 42-6.) 

Based on Defendant’s April 16, 1998 sentence, the United States Immigration and 

Naturalization Service (INS) initiated removal proceedings against Defendant under his 

alias. (Doc. 42-7.) The Notice to Appear (NTA) served on Defendant alleged that he 

was a native of Mexico, not a citizen of the United States, and that he entered the United 

States on April 13, 1998 without having been admitted or paroled by an immigration 

officer. (Id.) On May 4, 1998, Defendant appeared before an immigration judge (IJ) in 

Florence, Arizona. (Doc. 42-8.) During the hearing, Defendant affirmed that his name 

was Antonio Andrade-Calderon, admitted to the allegations contained in his NTA and 

conceded that the charge of removability was correct. (Id.) The IJ sustained the charge 

of removability and denied Defendant’s request for voluntary departure after Defendant 

admitted to driving the U-Haul loaded with illegal aliens. (Doc. 42-8, pgs. 30-35.) 

Defendant waived his right to appeal. (Id., pg. 34.) Defendant was removed from the 

United States pursuant to the May 4, 1998 order of removal. 

On June 26, 1998, Defendant, was arrested, under his true name, near Nogales, 

Arizona, and charged with transportation of illegal aliens for profit in violation of 8 

U.S.C. § 1324. (Doc. 42-11.) After his arrest, Immigration Service discovered 

Defendant’s prior use of an alias. (Doc. 42-12, pg. 3.) On September 9, 1999, following 

Defendant’s conviction, Defendant’s 1998 order of removal was reinstated; Defendant 

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was removed from the United States a second time on May 25, 1999. (Doc. 42-13.) 

Defendant is currently under indictment, charged with one count of illegal re-entry 

in violation of 8 U.S.C. § 1326(b)(2), for his alleged entry into the United States on 

August 31, 2015. (Doc. 7.) On February 18, 2016, Defendant filed the pending Motion to 

Dismiss the Indictment, collaterally attacking the validity of his 1998 removal 

proceedings. (Doc. 18.) 

DISCUSSION 

An alien may not challenge the validity of a prior deportation order unless the 

alien demonstrates: (1) he or she exhausted any administrative remedies that may have 

been available to seek relief against the order; (2) the proceeding 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. See § 1326(d)(3); United States v. HinojosaPerez, 206 F.3d 832, 835 (9th Cir. 2000). A predicate removal order satisfies the 

condition of being “fundamentally unfair” for purposes of § 1326(d)(3) when the 

deportation proceeding violated the alien's due process rights and the alien suffered 

prejudice as a result. United States v. Arias-Ordonez, 597 F.3d 972, 976 (9th Cir. 2010).

 After de novo review, the Court finds that Defendant was afforded due process 

during his 1998 removal proceedings and that Defendant is not entitled to dismissal of the 

current charges against him on this ground.1

 Removal proceedings under the INA are 

 1

 The Magistrate Judge concluded Defendant failed to demonstrate that he was 

denied any due process in the removal proceeding as Defendant had failed to inform the 

IJ of his status during the hearing. (Doc. 38, pg. 3.) The Magistrate’s R&R does not 

consider whether Defendant satisfied the other two requirements of § 1326(d)(3): (1) 

exhaustion of administrative remedies and (2) deprivation of the opportunity for judicial 

review. Although Defendant’s Objection to the R&R refers briefly (in a heading) to a 

deprivation of the opportunity for judicial review (Doc. 39, pg. 6), the arguments 

presented in the Objection relate only to the third element of § 1326(d)(3) – fundamental 

unfairness. Because the Court agrees with the Magistrate Judge’s conclusion that 

Defendant failed to prove fundamental unfairness, and because Defendant’s Objection to 

the R&R only presents arguments related to this element, the Court does not consider the 

arguments regarding the first two elements raised in Defendant’s initial Motion to 

Dismiss. In addition, because the Court concludes that no due process violation occurred, 

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divided into two categories: those proceedings seeking to remove inadmissible aliens, and 

those seeking to remove aliens who are already in and admitted to the United States, but 

who are nonetheless deportable. See Toro-Romero v. Ashcroft, 382 F.3d 930, 936 (9th 

Cir. 2004) (citing 8 U.S.C. § 1229a(a)(3)). Because INS was not aware that Antonio 

Andrade-Calderon was, in fact, a legal permanent resident named Jose Sergio CalderonAndrade, the 1998 removal proceedings against Defendant sought his removal as an 

inadmissible alien subject to the mandates of 8 U.S.C.A. § 1229a(c)(2). That provision 

of the INA provides, in relevant part: “In the proceeding the alien has the burden of 

establishing . . . by clear and convincing evidence, that the alien is lawfully present in the 

United States pursuant to a prior admission.” Thus, the burden was on Defendant, not the 

government or the IJ, to prove that he was an LPR. Because Defendant was arrested, 

charged and convicted under an alias he provided, neither the government nor the IJ were 

in possession of any information that would cause them to believe Defendant was an 

LPR. Defendant was in sole possession of that information, and he did not share it when 

it was his burden to do so.2

 Instead, Defendant admitted to the IJ that he was not a 

United States citizen, that he was a citizen of Mexico, and that he entered the United 

States without being admitted or paroled. (Doc. 42-8, pgs. 31-35.) 

Defendant contends that he did not receive due process because the IJ failed to 

advise Defendant that he may be eligible for relief from deportation, as required by 8 

C.F.R. § 242.17. Section 242.17 provides that an IJ must “inform the respondent [in a 

deportation hearing] of his apparent eligibility to apply for any benefits [of relief from 

deportation] enumerated in this paragraph and ... afford him an opportunity to make an 

application therefor during the hearing.” However, the regulation only applies when a 

respondent’s eligibility for relief is “apparent.” “IJs are not expected to be clairvoyant; 

 

the Court does not reach Defendant’s argument that he was prejudiced as a result of the 

deprivation of due process. 

2

 As the government notes in its response to Defendant’s Objection, Defendant had a plausible motive for concealing his LPR status – Defendant could be removed 

under his alias but maintain his LPR status under his real name. 

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the record before them must fairly raise the issue: Until the [alien] himself or some other 

person puts information before the judge that makes such eligibility ‘apparent,’ this duty 

does not come into play.” Moran-Enriquez v. I.N.S., 884 F.2d 420, 422 (9th Cir. 1989) 

(internal quotations omitted). In the present case, Defendant did not make any attempt to 

alert the IJ as to his true name or his LPR status; thus, his eligibility for relief was not 

apparent and the requirements of 8 C.F.R. § 242.17 did not apply.3

CONCLUSION 

 After an independent review of the pleadings, exhibits and transcript, IT IS 

HEREBY ORDERED that: 

1. The Report and Recommendation (Doc. 38) is ACCEPTED; and 

2. Defendant’s Motion to Dismiss Indictment (Doc. 18) is DENIED. 

 Dated this 13th day of June, 2016. 

 

3

 The Court declines to consider Defendant’s argument that he was not afforded due process because the IJ did not ask the questions suggested by the Executive Office 

for Immigration Review (EOIR) Immigration Bench Book, available at https://www.justice.gov/eoir/immigration-judge-benchbook. The EOIR expressly states on its website that “the benchbook does not, is not intended to, shall not be construed to, 

and may not be relied upon to create or to limit any rights, substantive or procedural, enforceable at law by any party in any matter, civil or criminal.” 

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