United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
TALWANI UNITED STATES DISTRICT JUDGE.
2003, the United States Customs and Border Protection
detained Defendant Geovane Jose Ferreira, a Brazilian
citizen, as he attempted to enter the United States. Ferreira
was removed to Brazil two weeks later pursuant to an
expedited order of removal. Ferreira returned to the United
States without permission the following year and has lived in
the Greater Boston area since then. In August 2017, after he
was detained by Immigration and Customs Enforcement
(“ICE”), Ferreira requested a “credible
fear” interview. A few weeks later, before the
interview was held, Ferreira was indicted on one count of
unlawful re-entry of a deported alien pursuant to 8 U.S.C.
§ 1326. Ferreira filed the pending Motion to
Dismiss [#34] the Indictment, arguing that the 2003
deportation upon which the Indictment relies violated due
process and cannot be used to establish a violation of 8
U.S.C. § 1326(a).
two-day evidentiary hearing, the court finds that Ferreira is
entitled to consideration of his collateral attack on the
2003 deportation order and has shown that certain procedural
errors occurred during his removal. Ferreira is not entitled
to dismissal of the Indictment, however, as he has failed to
meet his burden of showing prejudice from those procedural
errors. Ferreira's motion is therefore DENIED.
court finds the following facts based on the testimony and
documents presented at the evidentiary hearing.
Ferreira's 2003 Entry into the United States and Fear
of Returning to Brazil
2003, Ferreira tried to enter the United States through the
San Ysidro, California, port of entry by hiding with others
in the trunk of a Ford Explorer. The vehicle was stopped and
its occupants -- two men and one woman from Mexico, and three
men from Brazil - were detained. Hr'g Ex. 6. All six were
turned over to other immigration officials for expedited
removal. Id.; see 8 U.S.C. §
1225(b)(1)(A)(i). At the time, Ferreira was twenty-one years
old and spoke only Brazilian Portuguese.
did not request a credible fear interview and did not ask
to withdraw his application for admission to the United
States. Ferreira now states that had he been asked if he had
a fear of returning to Brazil in 2003, he would have stated
that he was afraid to return because he is afraid that his
uncle was going to come after him and harm him. Ferreira
claimed that his uncle is a dangerous person and that he was
told that his uncle had killed Ferreira's father when
Ferreira was one year old, and had killed other people, but
was never been punished for his crimes. Ferreira does not
know why his uncle killed his father. He asserted that his
grandmother was afraid for Ferreira's well-being the one
time that they encountered his uncle and he believes that he
was his uncle's target because he was the “man of
the house.” Ferreira admitted, however, that he has
never spoken with his uncle.
does not remember many of the details of his interactions
with immigration officials in 2003, including: whether he
spoke to more than one immigration officer; whether he was
questioned in Portuguese; whether a Portuguese interpreter
was on the telephone and was used to translate the interview;
whether any immigration officers spoke to him in Spanish;
whether he was read his rights in Portuguese; or whether an
immigration officer asked if he would like to withdraw his
application for admission to the United States. Although
Ferreira's testimony concerning the immigration
proceedings was unhelpful because of his poor recollection,
the court finds Ferreira to be generally credible and
concludes that he sincerely believes that he would have
expressed this fear of his uncle if the immigration officer
had asked him in 2003 about fears of returning to
The Expedited Removal Process in General Terms
Martin began serving as an officer for Customs and Border
Protection in 2001.Agent Martin testified that when someone is
stopped at a United States border station for attempting to
enter without authorization, the person is questioned briefly
about basic information, including his or her name and the
country from which he or she departed. The person is then
held in a holding cell pending a further interview, which
normally occurs on the same or following day.
December of 2003, Agent Martin was stationed at the San
Ysidro, California, port of entry, and conducted these
secondary interviews. The interviewees were brought from
their holding cell to an immigration officer's desk for
these interviews. If the interviewee did not speak English,
Agent Martin utilized the telephonic interpreter service.
Sargent, an employee of Cyracom International, testified that
he provides Portuguese interpreter services over the
telephone, including for immigration officials at the San
Ysidro, California, port of entry.
I-867A, entitled “Record of Sworn Statement in
Proceedings under Section 235(b)(1) of the Act, ” sets
forth more than half a page of instructions and warnings,
including one paragraph on protection for persons who face
persecution. Hr'g Ex. 1. Mr. Sargant explained that
prior to the events at issue, he had received a blank copy of
Form I-867A, and had translated these instructions and
warnings into Portuguese for ease of later interpreting. In
Mr. Sargant's experience, not every immigration officer
reads the Form I-867A opening statement in its entirety to
the interviewee, and occasionally immigration officers omit
parts of the statement. Mr. Sargent's practice is to
interpret exactly what the immigration officers say, even if
it does not track the language on Form I-867A.
response to the government's question as to whether she
“always read the entirety of that statement” on
the Form I-867A, Agent Martin testified, “I believe so,
yes.” Agent Martin stated that when she used a
translator, she read a line or two of text, let the
interpreter translate what she just said, and then continued
with the next few lines.
Martin testified that she asked the interviewee questions, in
English, which she documented onto Form I-867. After she
asked each question in English, she allowed the interpreter
to translate the question to the interviewee and then
translate the interviewee's response back to Agent
Martin. She then typed the answer given to her by the
translator into the form verbatim.
I-867B, entitled “Jurat for Record of Sworn Statement
in Proceedings under Section 235(b)(1) of the Act, ”
sets forth four questions that relate to the
interviewee's possible fear of returning to their home
country. Agent Martin explained that if the interviewee
expressed fear of being returned to his or her home country
or being removed from the United States, that person was kept
in custody and referred to the asylum officer in Los Angeles
for an asylum interview.
below the four questions on Form I-867B is the Jurat, which
I have read (or have had read to me) this statement,
consisting of ___pages (including this page). I state that my
answers are true and correct to the best of my knowledge and
that this statement is a full, true and correct record of my
interrogation on the date indicated by the above named
officer of the Immigration and Naturalization Service. I have
initialed each page of this statement (and the corrections
noted on page(s) ___.
Id. Below this Jurat there is a signature line, and
spaces for the agent and a witness to sign.
Sargent has not been provided a copy of a blank Form I-867B,
and has not been asked to interpret the words of the Jurat.
He also has never been asked to translate back to Portuguese
the interviewee's answers as recorded by the immigration
officer on Form I-867. Agent Martin similarly testified that
she did not read back the answers she had written on Form
I-867 for the interpreter to translate for the person being
asked to sign the Jurat.
Martin stated that after she asked questions and received
responses, she used the interpreter to help explain to the
interviewee the part of the Form I-296, entitled
“Notice to Alien Ordered Removed/Departure
Verification, ” Hr'g Ex. 4, pertaining to the
length of time that alien would be inadmissible to the United
States. She documented the alien's response on Form
I-867. Agent Martin next asked the interpreter to advise the
alien that what is written on the form documented the
questions and answers from the interview.
the interpreter finished explaining this, Agent Martin
disconnected the call with the interpreter. She signed the
I-867B form, had the interviewee sign it, and had a second
immigration officer sign it. She also testified that, because
she was fluent in Spanish, she tried to instruct Spanish and
Portuguese speaking immigrants to do physical tasks, such as
fingerprinting and moving around the office, using Spanish
and her body language.
Martin stated that after each interviewee left her desk, she
filled out the I-213 Form, entitled “Record of
Deportable/Inadmissible Alien.” Hr'g Ex. 5.
to being removed from the United States, but after the
detained immigrant left the immigration officer's desk,
the immigrant was given the I-296 Form, see Hr'g
Ex. 4, and an I-860 Form, entitled “Determination of
Inadmissibility, ” Hr'g Ex. 2, 3. These two forms
were not read to the person in his or her native language.
Martin had the discretion to allow an individual detained at
the border to withdraw their application for admission and be
voluntarily removed without a bar to reentry, but could only
exercise this discretion at the San Ysidro port of entry if
the alien was a legal resident or citizen of Mexico.
Otherwise, the immigration officials could not allow the
individual to withdraw the application for admission and
instead had to remove the alien to their home country.
Ferreira's Expedited Removal Process
noted above, Ferreira had little recollection of his removal
process. Agent Martin had no independent recollection of
interviewing Ferreira in 2003, but acknowledged that she
interviewed him after recognizing her name and signature on
Ferreira's Form I-867. Hr'g Ex. 1.
Form I-867A states that the statement was taken in
Portuguese, and lists an interpreter's identification
number and employer. Mr. Sargant has no independent memory of
providing interpreter services on December 3, 2003, and could
not remember whether he provided services for the agent who
conducted the interview in this case. However, Mr. Sargent
verified that the identification number and employer on
Ferreira's I-867A form were his interpreter
identification number and employer. Agent Martin testified
that the form would not have included a Portuguese
interpreter's identification number unless the statement
had been taken in Portuguese. Based on this testimony and
documentation, the court ...