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United States of America v. Nemecio Avila Cazares

February 15, 2011

UNITED STATES OF AMERICA, PLAINTIFF,
v.
NEMECIO AVILA CAZARES, DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY Chief U.S. District Judge

Illinois Central District Federal District Court

E-FILED

Tuesday, 15 February, 2011 02:13:07 PM

Clerk, U.S. District Court, ILCD

OPINION

This case is before the court for ruling on the Motion to Suppress (#17) filed by Defendant, Nemecio Avila Cazares. The Government filed a Response to Defendant's Motion to Suppress (#18). After careful consideration, this court agrees with the arguments presented by the Government. Accordingly, Defendant's Motion (#17) is DENIED.

BACKGROUND

On November 3, 2010, Defendant was charged by indictment (#7) with unlawful re-entry of a removed alien, in violation of 8 U.S.C. § 1326(a). The indictment alleged that, on or about October 26, 2010, Defendant was found in Champaign County, Illinois, after having been deported and removed from the United States on or about December 12, 2002. Defendant is represented by retained counsel, Neal Connors, and is detained pending trial.

On November 23, 2010, Defendant filed a Motion to Dismiss Indictment (#14). The Government filed a Response (#15) on December 9, 2010. On December 20, 2010, this court entered an Opinion (#16) and denied Defendant's Motion. This court agreed with the Government that the arguments made by Defendant assumed incorrect facts and were based upon sections of the Immigration and Naturalization Act (INA) that are not applicable to Defendant's stipulated removal. This court therefore concluded that Defendant's argument that the expedited removal proceedings were in violation of the due process of law were without merit.

MOTION TO SUPPRESS

In his Motion to Suppress, Defendant set out the facts regarding his removal proceedings, and attached lengthy documentation in support of his Motion. Defendant stated that the facts showed that he was apprehended in Iowa in 2001 for driving without a license and was transferred to INS custody prior to his removal from the United States to Mexico. During that time he was interviewed by INS agents in Cedar Rapids, Iowa, and was presented with a document titled "Notice to Respondent." In the middle of the document was a section entitled "Request for Prompt Hearing" which contained the following language, "To expedite a determination in my case, I request an immediate hearing. I waive my right to have a 10-day period prior to appearing before an immigration judge." The document contains Defendant's signature, which was witnessed by INS officer Raymundo Pena, and was dated April 13, 2001. The Notice to Respondent also set forth specific rights and responsibilities, including the right to be represented by counsel and the right to appear before an immigration judge.

The Notice of Custody Determination was dated April 13, 2001, and was signed by Defendant, showing that he received the notification. The document indicated that the Cedar Rapids INS official would determine custody "pending a final determination by the immigration judge in your case." The document did not include the custody determination. A document Defendant signed, which was dated April 16, 2001, stated that Defendant certified that the information he provided in a "Stipulated Request" was true and correct. The document was signed by "District Counsel or Deputy District Counsel" on May 4, 2001, but the line on the form for the signature of Defendant's attorney is blank. The "Decision of the Immigration Judge" was signed on May 10, 2001, and ordered Defendant to be removed from the United States.

Some time after Defendant was removed, he reentered the United States. On December 11, 2002, his previous order of removal was reinstated. Defendant noted that the record of the subsequent proceedings show that Defendant was asked if wished to have a lawyer or any other person present to advise him and he responded, "Yes." Defendant further noted that no further efforts appeared to have been made to address Defendant's right to counsel.

Defendant argued that the intrinsically suspect and unreliable evidence of Defendant's prior removal should be suppressed. Defendant further argued that he was not represented by counsel for purposes of the stipulated order of removal and his presumptive waiver of rights to any hearing should not be considered knowing and intelligent for purposes of ...


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