United States District Court, D. New Jersey, Camden Vicinage
F. Moy, Esquire Office Of Federal Public Defender
Kristen M. Harberg, AUSA Office of The U.S. Attorney
RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE
February 20, 2019, a federal grand jury returned a one-count
Indictment against Defendant Juan Pando-Aucay, charging him
with illegally re-entering the country in violation of 8
U.S.C. § 1326(a). The Indictment alleges that on
December 25, 2018, Defendant was found in the United States
after being deported on December 3, 2012. The facts leading
up to Defendant's arrest and subsequent Indictment do not
appear to be contested.
The Removal Proceedings from 2006 through 2012
31, 2006, Immigration and Customs Enforcement
(“ICE”) officers encountered Defendant at his
residence in Riverside, New Jersey. (Form I-213 Record of
Deportable/Inadmissible Alien, dated 7/31/06, obtained from
the Defendant's Alien File), attached to Government's
Opposition, at Id., at Ex. A.
officer served Defendant with a copy of the Notice to Appear
(“NTA”), which advised him of the charges and the
statutory grounds for removal. Id., at Ex. B (Form
I-862, Notice to Appear, dated 7/31/06, bearing a
“COPY” watermark, obtained from the
defendant's Alien File). The NTA also informed Defendant
of his various rights, the parameters of the removal
proceedings, and the consequences if he failed to appear at
any of the hearings set by the Immigration Court.
Id., Ex. B, at p. 2.
listed Defendant as the respondent in the removal proceeding.
Id., Ex. B, at p. 1. The Government contends that in
the space provided for the Defendant's current residence,
it appears that some writing may have been entered and then
redacted. In any event, the address Detention and Removal,
3900 N. Powerline Road, Pompano Beach, Florida 33073 was
stamped on the form. Id. The NTA stated that Defendant
was ordered to appear before an Immigration Judge in
Elizabeth, New Jersey, on a date to be set. Id.
Defendant signed the Certificate of Service on the back of
the NTA, indicating that it had been served on him in person.
Id., Ex. B., at p. 2.
was set at $7, 500.00, and Defendant was remanded to the
Elizabeth Detention Center in Elizabeth, New Jersey, in
default of bond. Id., Ex. A, p. 2; Ex. C. (Form
I-286, Notice of Custody Determination, dated 7/31/06,
certified copy obtained from the Executive Office for
Immigration Review's (“EOIR”) Record of
Proceeding). On August 8, 2006, Defendant was transferred
from the Elizabeth Detention Facility to the Krome District
Control Office in Miami, Florida, and he was housed at the
Broward Transitional Center (“BTC”) in Pompano
Beach, Florida. Id. at Ex. D (redacted Form I-203A,
Order to Detain or Release Aliens, obtained from the
defendant's Alien File); Id. at Ex. E (redacted
Form I-216, Record of Persons and Property Transferred,
obtained from the defendant's Alien File)].
August 14, 2006, the Immigration and Naturalization Service
(“INS”) filed the NTA with the Department of
Justice, Executive Office for Immigration Review, U.S.
Immigration Court, in Krome, Florida. Id., Ex. F
(Form I-862, Notice to Appear, dated 7/31/06, stamped
received on 8/14/06, certified copy obtained from the
EOIR's Record of Proceeding)]. The NTA reflected that
Defendant's residence was at the BTC in Pompano Beach,
Florida. Id., Ex. F, p. 1. The NTA ordered Defendant
to appear before an Immigration Judge at the BTC.
Id., Ex. B, at p. 1; Id., Ex. F., p. 1.
August 14, 2006, the BTC Custodial Officer served a Notice of
Hearing (“NOH”) on Defendant advising Defendant
of Defendant's case hearing on August 23, 2016, at 8:00
am, with the Immigration Court at the BTC. Id. at
Ex. G. (Notice of Hearing, dated 8/14/06, certified copy
obtained from the EOIR's Record of Proceeding).
August 23, 2006, Defendant appeared at a hearing before an
Immigration Judge at the BTC. Id. at Ex.
at Audio 1, 00:00-00:30. Defendant stated that he was
represented by counsel, but that his attorney was unable to
come to court that day. The Immigration Judge informed the
Defendant that the matter would be scheduled for September 5,
2006, at 8:00 am, and that if Defendant did not have a lawyer
present at that time, he would be required to proceed without
the assistance of counsel. Id. at Audio 1,
retained William J. Sanchez, Esquire, who filed a motion with
the Immigration Court in Miami seeking Defendant's
release on his own recognizance, or in the alternative, a
reduction of the $7, 500.00 cash bail. Id. at Ex. K
(Motion and Memorandum of Law in Support of Reduction in
Bond, obtained from the defendant's Alien File). On or
about September 15, 2006, the date of Defendant's
adjourned hearing, Defendant posted cash bond in the amount
of $7, 500.00, and he was released from ICE custody.
Id. at Ex. L (Cash Bail Receipt, dated 9/15/06,
obtained from the defendant's Alien File). Defendant was
instructed that he must inform the Immigration Court of any
change of address. Id. at Ex. M. (Form I-830, Notice
to EOIR: Alien Address, dated 9/18/06, obtained from the
defendant's Alien File).
October 5, 2006, a member of the court staff served a NOH on
both Defendant and Mr. Sanchez, via mail. It stated that the
case was scheduled for a hearing on November 16, 2006, at
9:00 am, at the Immigration Court in Miami. Id. at
Ex. N (Notice of Hearing, dated 10/5/06, certified copy
obtained from the EOIR's Record of Proceeding). The
hearing was re-set to December 14, 2006, and Defendant and
his counsel were notified. Id. at Ex. O (Notice of
Hearing, dated 10/30/06, certified copy obtained from the
EOIR's Record of Proceeding).
December 14, 2006, Defendant appeared before Immigration
Judge Teofilo Chapa in Miami, and was represented by Mr.
Sanchez. Id. at Ex. H, at Audio 1, 02:24-04:12. Mr.
Sanchez advised Judge Chapa that Defendant lived at 26 Polk
Street in Riverside, New Jersey. Mr. Sanchez said that
Defendant had traveled from New Jersey to Florida for the
hearing that day, and that they would be requesting a change
of venue because Defendant lived in New Jersey. Id.
at Ex. H. at Audio 1, 02:24-04:12.
Chapa asked how Defendant wished to plead, and Mr. Sanchez
stated that Defendant admitted to the charges set forth in
the NTA. Id., Ex. H. at Audio 1, 04:12-04:23. Judge
Chapa marked the NTA to indicate that Defendant admitted to
the charges on December 14, 2006, and that he found that
Defendant was subject to removal because he was an alien
present in the United States without being admitted or
paroled, or who arrived in the United States at any time or
place other than as designated by the Attorney General.
Id. at Ex. F., p. 1.
Defendant declined to designate a country of removal, and
Judge Chapa designated Ecuador as the country of removal. Mr.
Sanchez advised the Immigration Judge that New Jersey counsel
whom Defendant had retained, would be requesting a
withholding of removal. Judge Chapa stated that he was
inclined to grant a motion for a change of venue, but that
the New Jersey attorney was required to file any applications
for relief --including any asylum applications -- before he
would entertain a motion to transfer venue. Judge Chapa
explained that if he was going to transfer venue to New
Jersey, he wanted to be able to send a complete file to the
Immigration Judge in New Jersey. Id. at Ex. H. at
Audio 1, 06:15-09:27.
Chapa informed Defendant that he must appear at all of his
court hearings, and that the only excuse for failing to
appear is “if there are exceptional circumstances
beyond [his] control like serious illness or death of an
immediate family member, and nothing less compelling.”
Id., Ex. H at Audio 1, 09:27-10:13]. Defendant
verbally acknowledged that he understood. In addition, Judge
Chapa instructed Defendant that he must inform the court of
any change of address. Id., Ex. H at Audio 1,
March 5, 2007, Carlos Moreno, Esquire, on behalf of
Defendant, filed a motion with Judge Chapa requesting to
transfer venue from Florida to New Jersey, pursuant to C.F.R.
Section 3.20(b)(c). Id. at Ex. Q (Change of Venue
Motion, filed 3/5/07, obtained from Defendant's Alien
File). The motion stated that, “[r]espondent, through
counsel, acknowledge service of the Notice to Appear and
waives a reading of the allegations, admit the factual
allegations and concedes removability as charged.'”
Id. at Ex. Q, p. 3. Furthermore, the motion asserted
that the defendant lived in New Jersey, and that a transfer
of venue was requested so that he could adequately prepare an
asylum application for withholding of removal and relief
under Article 3 of the Convention Against Torture.
Id., pgs. 2-3.
March 7, 2007, Defendant appeared before Judge Chapa in
Miami, represented by Mr. Sanchez. Id., Ex. H at
Audio 1, 10:39-11:26]. Judge Chapa asked Defendant if he
authorized Mr. Sanchez to speak on his behalf, and Defendant
responded affirmatively. Id., Exhibit H at Audio 1,
10:39-11:26. Mr. Sanchez explained that Defendant lived in
New Jersey and was detained by ICE officers in New Jersey,
but he was transported to the BTC in Pompano Beach because
the detention facility in New Jersey was full. Mr. Sanchez
explained that he had represented Defendant when he had
appeared before a different Immigration Judge at the BTC in
Pompano Beach, and at that time, he had requested to transfer
venue from Florida to New Jersey. Id. at Audio 1,
Chapa responded that when the parties had last appeared in
December, he had instructed Defendant to file any and all
applications for relief, and that after receipt of the
applications for relief, he would consider a motion for a
transfer of venue. Judge Chapa explained that he wanted
Defendant to file his applications for relief before he would
consider a motion to transfer venue, because if he granted
the motion to ...