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United States v. Pando-Aucay

United States District Court, D. New Jersey, Camden Vicinage

November 21, 2019

UNITED STATES OF AMERICA
v.
JUAN SEGUNDO PANDO-AUCAY

          Maggie F. Moy, Esquire Office Of Federal Public Defender

          Kristen M. Harberg, AUSA Office of The U.S. Attorney

          OPINION

          RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE

         On 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.[1]

         I. Background

         A. The Removal Proceedings from 2006 through 2012

         On July 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.

         An ICE 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.

         The NTA 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.[2] 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[3] on the back of the NTA, indicating that it had been served on him in person. Id., Ex. B., at p. 2.

         Bond 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)].

         On 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.

         Also on 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).

         On August 23, 2006, Defendant appeared at a hearing before an Immigration Judge[4] at the BTC. Id. at Ex. H.[5] 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, 00:30-02:21.

         Defendant 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).

         On 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).

         On 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.

         Judge 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.

         The 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.

         Judge 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, 10:13-10:39.

         On 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.

         On 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, 11:26-12:05.

         Judge 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 ...


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