UNITED STATES of America, Plaintiff-Appellee, v. Gustavo GARCIA-GONZALEZ, Defendant-Appellant.
No. 13-50369.
United States Court of Appeals, Ninth Circuit.
Submitted March 3, 2015. Filed July 1, 2015.
1175
Laura E. Duffy, United States Attorney; Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division; and Anne Kristina Perry, Assistant United States Attorney, San Diego, CA, for Plaintiff-Appellee.
Before: MICHAEL R. MURPHY,** RONALD M. GOULD, and RICHARD C. TALLMAN, Circuit Judges.
OPINION
MURPHY, Circuit Judge:
I. INTRODUCTION
A grand jury indicted Gustavo Garcia-Gonzalez1 on one count of being a previously removed alien illegally found in the United States, in violation of
Exercising jurisdiction pursuant to
II. BACKGROUND
A. General Legal Background
It is a crime for an alien who has been removed from the United States to “enter[], attempt[] to enter, or ... at any time [be] found in” the United States without the express consent of the Attorney General.
“[A] predicate removal order satisfies the condition of being fundamentally unfair for purposes of
To demonstrate prejudice from a due process violation, Garcia must show that, absent the violation, it was plausible he would have obtained discretionary relief from removal. United States v. Raya-Vaca, 771 F.3d 1195, 1206 (9th Cir.2014). The only form of discretionary relief available in expedited removal proceedings is withdrawal of application for admission.
Garcia was born in Mexico. In 1989, at the age of eight, he was brought to the United States by his parents. He sporadically attended school in the United States, but never graduated from high school. Garcia has two children with Margarita Flores: Isabel Garcia and Anne Garcia. Anne Garcia has Down Syndrome. He has three children with his current partner Elva Rodriguez. The ages of his children do not appear in the record.
Sometime prior to 2002, Garcia‘s father, then a permanent legal resident of the United States, filed an I-130 petition to adjust Garcia‘s status. In 2006, after Garcia‘s father had become a United States citizen, the I-130 was approved. Garcia‘s priority date was reached in June 2007.4
In 2002, Garcia was convicted of, inter alia, possession of cocaine, in violation of
In 2003, Garcia was removed from the United States following proceedings before an Immigration Judge. See supra n. 2 (noting the government has conceded this removal proceeding was not fundamentally fair). On September 11, 2012, Garcia attempted to enter the United States through the San Ysidro Port of Entry. He presented a Washington state birth certificate that belonged to someone else. That same day, he was ordered removed from the United States via expedited removal. See
C. Procedural Background
Nine days after his expedited removal, officers found Garcia in the United States near the Calexico Port of Entry. A grand jury indicted Garcia on one count of illegal reentry. Garcia filed a motion to dismiss, asserting his 2012 expedited removal failed to comply with statutory and regulatory requirements in three ways: (1) the examining officer failed to comply with
III. ANALYSIS
A. Validity of 2012 Expedited Removal
1. Standard of Review
This court reviews de novo a “denial of a motion to dismiss an indictment under
2. Discussion
a. Due Process Violation
The government does not contest the assertion that Garcia‘s 2012 expedited removal proceeding failed to comply with the applicable regulation. See
b. Prejudice
Garcia failed to demonstrate that, absent the assumed due process violation, it was plausible he would have been granted withdrawal of his application for admission in lieu of his 2012 expedited removal. This case is factually and legally indistinguishable from Barajas-Alvarado, 655 F.3d at 1079. As was the case in Barajas-Alvarado, Garcia attempted to enter the United States with false documents of citizenship. Barajas-Alvarado concluded such conduct had a “disqualifying effect” given the Field Manual‘s focus on “obvious, deliberate fraud on the part of the applicant.” 655 F.3d at 1091 (quoting Inspector‘s Field Manual § 17.2). Thus, the first and third factors from the Field Manual weigh strongly against discretionary relief. Id. at 1090-91; see also Raya-Vaca 771 F.3d at 1210 (collecting cases for proposition that deliberate fraud during an attempted entry “renders relief implausible“).
The remaining factors also weigh against granting relief. Without regard to whether it would support a
None of the factors set out in the Field Manual support the grant of discretionary relief. Garcia nevertheless argues he is entitled to relief because he has identified one similarly situated individual, “Gonzalez,” who was allowed to withdraw his application for admission. This assertion, too, is foreclosed by Barajas-Alvarado, 655 F.3d at 1079. The relevant immigration documents provide no information at all as to why Gonzalez was allowed to withdraw his application for admission. Barajas-Alvarado makes clear such comparisons offer no help to an alien attempting to demonstrate discretionary relief is plausible. 655 F.3d at 1091 n. 17. The mere fact that a few other aliens in a position arguably similar to Garcia‘s position were allowed (for reasons unknown) to withdraw their applications for admission establishes nothing more than relief in that situation is possible. “[E]stablishing plausibility[, however,] requires more than establishing a mere possibility.” Id. at 1089 (quotations omitted).
c. Conclusion
Even assuming the existence of a due process violation, Garcia has failed to carry his burden of demonstrating prejudice flowing from such violation. In particular, he has failed to demonstrate that absent such violation, relief in the form of withdrawal of application of admission was plausible. Thus, the district court correctly denied Garcia‘s motion to dismiss.
B. Motion to Compel
1. Standard of Review
This court reviews de novo challenges to a conviction based on Brady v. Maryland, 373 U.S. 83 (1963). United States v. Smith, 282 F.3d 758, 770 (9th Cir.2002). This court also conducts de novo review of a district court‘s interpretation of the Federal Rules of Criminal Procedure. United States v. Fort, 472 F.3d 1106, 1109 (9th Cir.2007).
2. Discussion
Garcia served upon the United States a subpoena ordering it to produce “[a]ny statistics as to whether persons committing fraud are or are not receiving withdrawal of application for admission.”5 When the government did not comply with the subpoena, Garcia moved to compel. At the hearing on the motion to compel, the government contended no such statistics exist. In support of this assertion, the government presented the testimony of Johnny Armijo, the Assistant Director for Border Security at the San Diego Field Office. Armijo testified as follows:
Q. And to the best of your knowledge, is there a database existing that could be accessed telling us how many people have been allowed to withdraw their applications for admission who had first come in with fraudulent documents?
A. No, we don‘t have that capability.
Q. What would it require you to do?
A. We would have to manually search every case, and review the fact patterns surrounding each one of those cases to determine that answer.
Q. So, to the best of your knowledge, there are no actual statistics as to the
number of people in the Southern District of California in a given time frame who came in, had false docs, and then were allowed to withdraw their application?
A. No, we don‘t record that.
Based on this testimony, the district court found (1) the Brady/discovery material Garcia sought from the government did not exist; and (2) the government could not produce accurate statistics of the type sought by Garcia even through the expenditure of significant resources.
THE COURT: Well, but the problem is you want them to do research to try to generate Brady material that doesn‘t exist.
The Brady material doesn‘t exist. If there were statistics that could help your case, you would be entitled to it.
But what you want them to do is to devise a program, a research method, to try to figure out how to get these statistics.
[Armijo] testified the statistics don‘t exist. I find him to be credible. You‘ve offered nothing to the contrary.
So I think they—you have asked for any statistics as to whether persons committing fraud are or are not receiving withdrawal of application for admission.
[Armijo] testified that the statistics don‘t exist, presently exist.
I don‘t believe under Brady that they are obligated to do a statistical research to see if they can come up with something that would help your case, especially in the light of that you can‘t offer more than one random situation [Gonzalez] where they allowed the fellow to withdraw.
I mean, there is nothing more that runs against the field manual. There is no pattern shown. There is just one spurious example. That‘s all we have.
And I‘m not going to require the government to drop whatever they‘re doing and spend time and effort to do research to see if somehow they can figure out something that may somewhere be relevant in this case.
The statistics don‘t exist. They can‘t quickly get them. They would have to look at every case. And plus the other problem here is you don‘t know the grounds.
As Mr. Armijo said, they may have just put that he has no basis for entry. Even if there was fraud, they may have not specified fraud, so you don‘t know.
We‘re not going to really get really good statistics because there is no specific control over the situation. So we are just going—we‘re not getting anywhere with this.
So I think that‘s it. Unless you have something else to offer, I‘m going to find that the government has not failed to comply with the subpoena because what is called for under the subpoena doesn‘t presently exist.
Despite these specific findings on the part of the district court,6 Garcia asserts the district court erred when it concluded that the government‘s failure to turn over the requested statistics did not violate Brady and Federal Rules of Criminal Procedure 16 and 17. But see Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir.1995) (“The government has no obligation to produce information which it does not possess or of which it is unaware.“);
Garcia‘s arguments are not persuasive. Garcia never presented any evidence in the district court. The only testimony presented at the hearing on the motion to compel was that of Armijo, the government‘s witness. At that hearing, Garcia never challenged Armijo‘s qualifications to testify. Garcia now asserts his cross-examination of Armijo developed evidence sufficient to meet his initial burden to create an inference the statistics exist, but that Armijo‘s remaining testimony was insufficient to satisfy the government‘s burden of proving they do not exist. Garcia cannot have it both ways. Either Armijo was not a proper witness to testify as to the existence of the requested statistics, which means no evidence was presented at the hearing to satisfy his initial burden, or he was a proper witness, which means his categorical denial of the existence of such statistics satisfies the government‘s burden.
In any event, it is simply not reasonable to assert that any component of Armijo‘s testimony supports in any way the existence of statistics (reliable or not) as to the number of persons attempting to enter the country with false documents that have been granted discretionary relief. Instead, as set out above, Armijo categorically denied the existence of any such relevant statistics and specifically testified that producing accurate statistics of the type sought by Garcia was not possible, even with the expenditure of significant resources. That was so because the information Garcia sought was not routinely recorded on the relevant immigration forms. The district court found Armijo‘s testimony to be credible, and there is absolutely nothing in the record that would cast doubt on that credibility determination.
Because Garcia has not produced any evidence indicating the statistics he seeks exist, or can be accurately and easily created, his arguments based on Brady and Federal Rules of Criminal Procedure 16 and 17 fail.
IV. CONCLUSION
For those reasons set out above, the judgment of conviction entered by the district court in this case is hereby affirmed.
In re Michael GORDON; Rebecca Gordon, Debtors.
Michael Gordon; Rebecca Gordon, Appellants, v. David Wadsworth, as Chapter 7 Trustee, Appellee.
No. 14-1257.
United States Court of Appeals, Tenth Circuit.
June 26, 2015.