United States v. Roque-Polanco
3:11-cr-05520
S.D. Cal.Apr 18, 2012Background
- Defendant Juan Roque-Polanco, a Mexican citizen, was arrested near the Tecate border crossing after Border Patrol followed signs for about 50 minutes and he admitted lacking authorization to enter the United States.
- Roque-Polanco has lived in the United States since 1982 and is married to Sylvia Roque, a U.S. citizen.
- He has prior convictions: 1988 marijuana distribution in Texas and 1992 residential burglary with intent to commit theft, the latter involving moral turpitude.
- Roque-Polanco was subject to expedited removals on July 31, 2011 (Carrizo Springs, TX) and August 13, 2011 (Campo area, San Diego County).
- He was charged in a 11-cr-5520 proceeding with reentry after removal under 8 U.S.C. § 1326 and moved to dismiss the indictment under 8 U.S.C. § 1326(d) alleging fundamental unfairness in expedited removal proceedings.
- The court previously ruled that the DHS field manual did not directly address aggravated felonies, found a due process violation by not recognizing withdrawal relief, and denied dismissal; on reconsideration, the court granted reconsideration but again denied dismissal after evaluating prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the defendant suffered prejudice under §1326(d). | Roque-Polanco argues due process violations prejudiced him by denying relief. | Roque-Polanco contends the removal process and failure to consider withdrawal relief show prejudice. | Prejudice not established; withdrawal relief not plausibly possible. |
| Whether the court erred by relying on the DHS field manual to assess plausibility of relief. | Roque-Polanco contends the manual’s lack of guidance on aggravated felonies undermines the prejudice analysis. | Roque-Polanco asserts the manual is inapplicable to aggravated felonies and cannot support prejudice. | The court grants reconsideration; reliance on the DHS field manual was clear error. |
| Whether Roque-Polanco could plausibly obtain an 1182(h) waiver to overcome inadmissibility. | Roque-Polanco asserts eligibility for 1182(h) waivers under subsections (A) and (B) based on age of conviction and spousal hardship. | Roque-Polanco cannot demonstrate plausible eligibility or favorable discretionary exercise under 1182(h)(2). | Waiver unlikely; factor 4 weighs against plausibility; no prejudice established. |
| Whether the 1992 burglary conviction is a basis for inadmissibility and affects the withdrawal analysis. | Roque-Polanco contends his record should be weighed for relief eligibility. | Conviction is a ground of inadmissibility; must show easy overcome for plausibility. | 1992 burglary is a ground of inadmissibility and not easily overcome; weighs against relief. |
Key Cases Cited
- Barajas-Alvarado v. Holder, 655 F.3d 1077 (9th Cir. 2011) (illegitimate asylum relief requires plausible grounds for discretion)
- Mejia v. Gonzales, 499 F.3d 991 (9th Cir. 2007) (discretionary waiver standards under 8 U.S.C. § 1182(h))
- Arce-Hernandez v. Ashcroft, 163 F.3d 559 (9th Cir. 1998) (prejudice showing requires plausible grounds for relief)
- Corrales-Beltran v. Gonzales, 192 F.3d 1311 (9th Cir. 1999) (prejudice analysis in §1326(d); plausibility standard)
- Arrieta v. United States, 224 F.3d 1076 (9th Cir. 2000) (waiver plausibility in aggravated-felonies context)
- In re [Name Redacted], 2006 WL 5913573 (Administrative Appeals Office, 2006) (authority on 1182(h) waiver outcomes (non-precedential))
- Aguirre v. United States, 214 F.3d 1122 (9th Cir. 2000) (inherent authority to hear motions for reconsideration in criminal cases)
- School District No. 1J v. ACandS, Inc., 5 F.3d 1255 (9th Cir. 1993) (clear-error standard for reconsideration)