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United States v. Silvestre-Gregorio

United States District Court, E.D. Tennessee, Greeneville

June 3, 2019




         This matter is before the Court on Defendant's Motion to Dismiss, or Alternatively to Release Defendant on Pretrial Conditions of Release Pending a Final Decision [Doc. 20], the United States' Response [Doc. 21], Defendant's Supplemental Memorandum [Doc. 28], the United States' Response to Defendants' Supplemental Memorandum [Doc. 31], the United States' Post-Hearing Memorandum [Doc. 39], Defendants' Post-Hearing Memorandum [Doc. 40], and Defendant's Supplement to Post-Hearing Memorandum [Doc. 42]. For the reasons herein, the Court will deny Defendant's motion.

         I. Background

         In 1996, Defendant Pedro Silvestre-Gregorio, at roughly the age of eleven, fled his native country of Guatemala for Mexico, to escape poverty and violence. [Hr'g Tr., Doc. 37, at 82:7-12; 83:16-25; 84:1-2].[1] As a native of Guatemala, he spoke “Chuj, ” [id. at 28:23-26], a regional dialect of northern Guatemala, [id. at 84:19-22]. According to Mr. Silvestre-Gregorio, most of the people in the area where he grew up in Guatemala spoke Chuj; few spoke Spanish. [Id. at 85:16-19]. After defecting to Mexico, where the locals spoke Spanish, he learned “a little bit of Spanish, ” [id. at 86:4-12], including “how to ask for food, how to call somebody, and how to say good morning.” [Id. at 90:2-3]. He sold coffee and tortillas and cleaned windows to earn a living in Mexico, and none of these activities, he claims, required much communication in Spanish with others. [Id. at 85:20-25; 86:1; 87:21-24; 89:23-25; 90:1-3].

         In February 2001, after spending four or five years in Mexico, he crossed the border into the United States, with the help of a boy from Mexico. [Id. at 85:20-21; 108:6-9; Arrest Warrant, Doc. 21-2, at 3]. After he entered the United States, federal agents apprehended him. [Hr'g Tr. at 88:9-11; 89:1-3; Arrest Warrant at 3]. He admittedly lied to these agents, telling them that he was from Mexico rather than Guatemala because he did not want them to send him back to Guatemala. [Hr'g Tr. at 88:9-25].

         The United States Immigration and Naturalization Service (INS) initiated removal proceedings against Mr. Silvestre-Gregorio. [Notice to Appear, Doc. 21-2, at 1-2]. In a “Notice to Appear, ” INS alleged he was illegally present in the United States and ordered his appearance before an immigration judge in Houston, Texas. [Id. at 1]. The notice to appear has a section titled “Certificate of Service, ” which contains a fingerprint, a handwritten “X” affixed to a line labeled “Signature of Respondent if Personally Served, ” and a sentence stating that “the alien was provided oral notice in the Spanish language”:

         (Image Omitted)

         [Id. at 2].

         INS also prepared a “Notice of Rights and Request for Disposition” [Doc. 21-3], which has the name “Lopez-Abarca, Jesus” at the head and states in part:

         (Image Omitted)

         [Notice of Rights at 2]. This notice also contains a section titled “Request for Disposition, ” which shows a handwritten “X” next to a box that states:

I admit that I am in the United States illegally, and I believe I do not face harm if I return to my country. I give up my right to a hearing before the Immigration Court. I wish to return to my country as soon as arrangements can be made to effect my departure. I understand that I may be held in detention until my departure.

[Id. at 1]. Another handwritten “X” and the words “(Alien's Mark)” appear on a signature line below this paragraph. [Id.]. Lastly, the notice has a section titled “Certification of Service, ” and it bears an INS officer's signature and states the notice was “read to subject . . . in the Spanish language.” [Id.].

         Despite the handwritten “X” alongside the language dealing with the waiver of a hearing in this notice, Mr. Silvestre-Gregorio, in March 2001, appeared before an immigration judge in Houston, along with other respondents. [Immigration J. Order, Doc. 20-1, at 1; Audio: Removal Hr'g, Ex. 3, 4:04-09 (March 22, 2001)]. At the time, Mr. Silvestre-Gregorio was still a minor, of the age of sixteen, [Hr'g Tr. at 82:7-8; Audio: Removal Hr'g at 2:06-21], and a representative from Associated Catholic Charities, Mr. Peter Stempien, was present with him, [Notice of Appearance, Doc. 21-6; Audio: Removal Hr'g at 0:36-1:00].[2] A Spanish-speaking interpreter was also present at the hearing and, throughout the hearing, he translated all the immigration judge's statements and questions from English to Spanish. [Audio: Removal Hr'g at 1:43-49].

         The immigration judge began the hearing by asking Mr. Silvestre-Gregorio, through the interpreter, to state his name, and Mr. Silvestre-Gregorio stated his name. [Id. at 2:02-16]. The immigration judge next asked Mr. Silvestre-Gregorio for his age, and he stated his age. [Id. at 2:17-21]. The immigration judge then addressed all the respondents at once, explaining to them, through the interpreter, the nature of the proceedings, which he described as “removal proceedings.” [Id. at 4:10-16]. He acknowledged that INS initiated the proceedings by filing a notice to appear for each respondent, and he noted that the interpreter had verified that each respondent received a notice to appear. [Id. at 4:17-39]. Next, he checked with Mr. Stempien to see if he received a copy of the notice to appear on Mr. Silvestre-Gregorio's behalf, [id. at 2:16-21], and he answered, “yes, ” [id. at 4:40-47].

         From there, the immigration judge highlighted the importance of the notice to appear, pointing out to each respondent that it “contains all the reasons that the Immigration Service believes you are subject to removal.” [Id. at 4:50-5:07]. He informed the respondents that the proceedings were “a way of removing a person from the United States, ” [id. at 5:48-57], and he summarized INS's charges against them in the notices to appear-namely INS's position that they were subject to removal because they are illegally present in the United States, [id. at 6:30-56]. He then asked Mr. Silvestre-Gregorio if he understood the nature of the proceedings as he described them to him. [Id. at 7:54-8:03]. His answer was “yes.” [Id. at 8:04-05].

         Next, the immigration judge explained the respondents' legal rights, including their right to present documents, evidence, and witnesses; their right to challenge any documents that INS introduced and used against them; their right to ask witnesses questions to ensure they were telling the truth; and their right to appeal a decision that they did not like. [Id. at 8:12-9:24]. He pointed out, specifically, that an “appeal” means an opportunity for them to have a higher court review his decisions “to make sure there is no mistake.” [Id. at 9:24-34]. He then inquired as to whether Mr. Silvestre-Gregorio understood his legal rights as he described them to him, and Mr. Silvestre-Gregorio's response was “yes.” [Id. at 9:36-52].

         Lastly, the immigration judge explained the respondents' right to counsel; he informed them that they could have time to talk with an attorney or hire an attorney at little or no cost to them. [Id. at 9:56-10:58]. When he asked Mr. Silvestre-Gregorio whether he “understand[s] that he could have some time to look for an attorney if he wanted [one], ” Mr. Silvestre-Gregorio's response was “yes.” [Id. at 11:05-18]. He then asked Mr. Silvestre-Gregorio whether he would like more time to retain an attorney, and Mr. Silvestre-Gregorio paused for about eight seconds before declining the offer for more time, prompting the immigration judge to present follow-up questions to him:

Immigration Judge: Jesus, do you want more time [to retain an attorney], or do you want to finish your case today?
Mr. Silvestre-Gregorio: Yes.
Immigration Judge: Does that mean you want more time or does that mean you want to finish today?
Mr. Silvestre-Gregorio: . . .
Immigration Judge: Do you understand the question?
Mr. Silvestre-Gregorio: . . .
Immigration Judge: Do you understand this interpreter?
Mr. Silvestre-Gregorio: Yes.
Immigration Judge: Okay. So the question is do you need some more time or . . . [unintelligible]?
Mr. Silvestre-Gregorio: No.
Immigration Judge: So you want to finish today?
Mr. Silvestre-Gregorio: Yes.

[Id. at 11:32-12:24]. Several minutes later, after addressing some matters involving the other respondents, the immigration judge returned his focus to Mr. Silvestre-Gregorio, asking him if he had questions about anything he said up till now. [Id. at 18:24-33]. Mr. Silvestre-Gregorio responded by saying that he has no questions, and the immigration judge transitioned into a one on-one interaction with him. [Id. at 18:34].

         The immigration judge asked Mr. Silvestre-Gregorio if he was prepared to represent himself. [Id. at 19:31-33]. When he responded, “yes, ” [id. at 19:34-36], the immigration judge placed him under oath: “Do you swear that any testimony you give will be the truth, the whole truth, and nothing but the truth, so help you God?” [Id. at 19:40-56]. Mr. Silvestre-Gregorio, however, did not provide the immigration judge with an immediate answer, prompting the immigration judge to say, “Jesus?” [Id. at 19:58-59]. Mr. Silvestre-Gregorio then offered his response to the oath, stating, “yes.” [Id. at 20:00-02]. Raising a follow-up question, the immigration judge asked him if he understood “what it mean[t] to tell the truth, ” and his response was “yes.” [Id. at 20:05-12]. The immigration judge then recited INS's allegations and inquired as to whether Mr. Silvestre-Gregorio was a native and citizen of Mexico, and in response, he lied to the immigration judge, answering, “yes.” [Id. at 20:15-51].

         As the hearing proceeded, the immigration judge, through the interpreter, began to pose more open-ended questions to Mr. Silvestre-Gregorio-questions that required more than a yes or no answer-and Mr. Silvestre-Gregorio responded to them in Spanish:

Immigration Judge: Where were you born?
Mr. Silvestre-Gregorio: In Chiapas.
Immigration Judge: And that's in Mexico, is that correct?
Mr. Silvestre-Gregorio: Yes.
Immigration Judge: How did you cross the border, from Mexico into the United States?
Mr. Silvestre-Gregorio: Well, there was a young man who crossed me.
. . . .
Immigration Judge: So did you cross the bridge, or did you go through water? How did you do it?
Mr. Silvestre-Gregorio: I crossed the river.
Immigration Judge: So it was away from the road or the bridge?
Mr. Silvestre-Gregorio: . . .
Immigration Judge: Does he understand the question?
Mr. Silvestre-Gregorio: Yes.
Immigration Judge: How long were you in the United States before you were caught?
Mr. Silvestre-Gregorio: Fifteen days.
Immigration Judge: And why were you caught?
Mr. Silvestre-Gregorio: One day, and they caught me over here in Houston.
Immigration Judge: You made it from the border to Houston in one day?
Mr. Silvestre-Gregorio: Yes.
Immigration Judge: How'd you do that?
Mr. Silvestre-Gregorio: Well, when [they] caught me, I had been here for one day.
. . . .
Immigration Judge: My question is, how did you get to Houston so quickly?
Mr. Silvestre-Gregorio: In a car.

[Id. at 22:20-24:36].

         After this discussion, the immigration judge inquired about Mr. Silvestre-Gregorio's parents and family members. [Id. at 25:00-02]. Mr. Silvestre-Gregorio responded that he had no relatives in the United States and that his parents were in Chiapas. [Id. at 25:04-38]. He also informed the immigration judge that he had no reason to be fearful of returning to Mexico and that his parents could send him money so he could return there. [Id. at 25:40-26:13; 27:00-36]. But after consulting Mr. Stempien, the immigration judge advised Mr. Silvestre-Gregorio that neither Catholic Charities nor the Mexican Consulate had been able to locate his parents in Mexico. [Id. at 27:57-28:38]. He questioned how Mr. Silvestre-Gregorio could afford to return to Mexico without the ability to contact his parents or relatives in the United States who might provide him with financial assistance. [Id. at 28:42-56]. “Based on what you're telling me, ” the immigration judge said to him, “you don't appear to be eligible for any application.” [Id. at 29:02-14]. He also said, “You can't contact your family to send you money, so you don't qualify for voluntary departure.” [Id. at 29:58-30:16].

         Concluding that Mr. Silvestre-Gregorio had no legal remedy to prevent his removal to Mexico, the immigration judge announced that he would issue an order of deportation. [Id. at 30:17-47]. He asked Mr. Silvestre-Gregorio, however, if he would like to appeal his order to a higher court. [Id. at 31:00-11]. Mr. Silvestre-Gregorio's answer was “no.” [Id. at 31:12-15]. “So you want the government to send you back?” [Id. at 31:15-20]. “Yes, ” Mr. Silvestre-Gregorio responded. [Id. at 31:21-22]. The removal proceeding concluded, and the immigration judge issued a written deportation order. [Immigration J. Order at 1].

         In 2018, roughly seventeen years later, federal immigration officials found and arrested Mr. Silvestre-Gregorio in the Eastern District of Tennessee, [Criminal Compl., Doc. 1, at 1-2; Executed Warrant, Doc. 7, at 1], where he was charged with illegal reentry, in violation of 8 U.S.C. § 1326(a), [Indictment, Doc. 8, at 1]. The United States Magistrate Judge appointed Federal Defender Services of East Tennessee (FDS) to represent him, [Order, Doc. 4, at 1], and FDS moved to dismiss the indictment, challenging the underlying administrative hearing-that is, the removal hearing in Houston-as fundamentally unfair. [Def.'s Mot. Dismiss at 1-11].

         Specifically, FDS contends that the immigration judge's removal order is fundamentally unfair for three reasons. First, it argues that INS violated Mr. Silvestre-Gregorio's right to due process under the Fifth Amendment of the United States Constitution because it never served him with, or obtained his signature on, the notice to appear. [Id. at 3-6]. FDS asserts that he therefore was without valid notice of the removal hearing, and that, as a result, jurisdiction never vested with the immigration court. [Id.]. In addition, it also contends that the removal proceedings violated Mr. Silvestre-Gregorio's due process rights under the Fifth Amendment because he lacked “sufficient understanding of the Spanish language at the time to understand the interpreters in the courtroom.” [Def.'s Suppl. Mem. at 9]. Second, FDS maintains that the immigration judge did not advise Mr. Silvestre-Gregorio of his right to a form of relief known as “voluntary departure.” [Id. at 7-8].[3] Third, FDS argues that Mr. Silvestre-Gregorio- particularly in light of his status as a minor-was entitled to legal representation throughout the removal hearing. [Id. at 8-9].

         On April 2, 2019, the Court held an evidentiary hearing on Mr. Silvestre-Gregorio's motion to dismiss the indictment. [Minute Entry, Doc. 32]. The Court received testimony from multiple witnesses, [4] the first of whom was Sandra Jácome, a certified state court interpreter who has been translating English to Spanish for fifteen years and grew up in a Spanish-speaking home in Belize. [Hr'g Tr. at 4:4-13]. She appeared as Mr. Silvestre-Gregorio's witness and testified as a lay witness, not an expert witness. [Id. at 56:6-9]. Having listened to the audio recording from Mr. Silvestre-Gregorio's removal hearing in Houston, she offered her opinion, based on her knowledge and experience, that Mr. Silvestre-Gregorio likely did not understand the bulk of the interpreter's translations. [Id. at 20:5-25; 26:1].

         According to Ms. Jácome, the interpreter gave a “very good interpretation” of the immigration judge, but he used five “false cognates, ” spoke in a “high register, ” and relayed the immigration judge's words to Mr. Silvestre-Gregorio at a “very fast” rate-all of which limited Mr. Silvestre Gregorio's ability to understand the proceedings. [Id. at 8:13-20; 19:14-25; 20:5- 13; 32:19-23; 37:19-25; 38:1-7]. Ms. Jácome testified that she had to listen to the recording twice to understand completely the interpreter's translations and that a person who speaks a non-Spanish dialect or imperfect Spanish would have understood about thirty percent of it. [Id. at 20:5-25; 26:1; 75:13-14]. She also testified that a college graduate in “a Latin American country who is not involved in the legal system” would have been unable to understand “a lot of the terminology used in that, in that recording.” [Id. at 11:11-13].

         As support for her testimony, she highlighted certain pauses in Mr. Silvestre-Gregorio's responses to the interpreter's translations, and she testified that these pauses demonstrate that he likely did not fully understand these translations. [Id. at 14:20-25; 15:1-14; 15:24-25; 16:1-25; 17:1-6; 24:17-25]. For example, Ms. Jácome stated that Mr. Silvestre-Gregorio's eight-second pause-in response the immigration' judge's question of whether he wanted additional time to retain an attorney-meant that he did not understand whether to say yes or no. [Id. at 16:12-25; 17:1-6]. But Ms. Jácome agreed that a pause leading up to a person's answer to a question can potentially mean “a lot of things” and is not always indicative of a lack of understanding on that person's part. [Id. at 59:17-19]. She conceded that this type of pause could mean the person is thinking or considering the answer that is in his best interest. [Id. at 59:20-25; 60:1-4]. Also, she recognized that pauses did not precede all of Mr. Silvestre-Gregorio's answers and that some of his answers were “confident.” [Id. at 21:5-9].

         Still, she believed that in this case-because of the interpreter's use of false cognates, a high register, and a fast rate of speech-Mr. Silvestre-Gregorio's pauses were “highly likely” a manifestation of his inability to understand the interpreter. [Id. at 60:13-19]. Specifically, she maintained that Mr. Silvestre-Gregorio did not understand his right to reserve additional time to retain an attorney because “he never gave an answer to that particular question.” [Id. at 77:18- 21]. She also testified that she did not believe that Mr. Silvestre-Gregorio understood his right to pursue voluntary departure because “voluntary departure is higher register in Spanish.” [Id. at 76:21-25; 77:1]. She was unable to form any opinion, however, as to whether he understood the nature of the proceedings or his right to appeal. [Id. at 74:22-25; 75:1-2; 76:13-20].

         After Ms. Jácome's testimony, Mr. Silvestre-Gregorio testified. When FDS showed him the notice to appear and the notice of rights-the documents that INS prepared before his removal hearing in Houston-he did not recognize them and did not recall whether someone had explained or read them to him leading up to his removal hearing, though he acknowledged that “it is possible” that someone did. [Id. at 91:7-8; 91:13-19; 105:21-25; 106:23-25; 107:1-2; 107:11-16; 124:7-12]. He also did not remember signing the documents and said that the “X” that appears in each signature block is not his own. [Id. at 93:8-13]. He stated that he signs documents with his own signature-with the name Jesus Lopez-Abarca-and not with an “X.” [Id. at 93:14-24].

         As for his testimony about his ability to understand the interpreter at the removal hearing, he stated that his primary language at that time was Chuj and he did not “speak much” Spanish. [Id. at 89:18-24].[5] Although he initially testified that he did not understand any of the interpreter's questions and statements, he went on to recant this testimony-with the help of a leading question or two from FDS-and maintained that he understood some but not all of the interpreter's questions:

Q: And did you understand some of what the interpreter said?
A: Honestly, no.
Q: Well, you answered some of the questions. Could you hear the [audio of the] hearing very well today ...

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