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United States v. Ferreira

United States District Court, D. Massachusetts

February 1, 2019




         In 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.[1] 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).

         After 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.

         A. Factual Background

         The court finds the following facts based on the testimony and documents presented at the evidentiary hearing.

         1. Ferreira's 2003 Entry into the United States and Fear of Returning to Brazil

         In 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.

         Ferreira did not request a credible fear interview[2] and did not ask to withdraw his application for admission[3] 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.

         Ferreira 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 Brazil.[4]

         b. The Expedited Removal Process in General Terms

         Lisa Martin began serving as an officer for Customs and Border Protection in 2001.[5]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.

         In 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.

         David 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.

         Form 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.[6] 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.

         In 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.

         Agent 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.

         Form 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.

         Directly below the four questions on Form I-867B is the Jurat, which states:

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.

         Mr. 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.

         Agent 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.

         Once 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.

         Agent 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.

         Prior 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.

         Agent 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.

         c. Ferreira's Expedited Removal Process

         As 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.

         Ferreira's 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 ...

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