Orozco Seeks Ruling To Dismiss Case

A motion to dismiss was filed on Thursday, March 19, regarding the charges facing Roberto Orozco- Ramirez in U.S. District Court. The motion states that Orozco- Ramirez’s “prior removal is invalid and constitutionally infirm.”

Orozco-Ramirez has been detained on a charge of illegal reentry since he surrendered to authorities on Jan. 25 Federal defender Rachel Julagay, senior litigator H. Henry Branom Jr., and the Federal Defenders of Montana move that precedent from the Supreme Court of the United States and the Ninth Circuit Court of Appeals requires the dismissal of the government’s reentry charge. “In this instance, the government seeks to reinstate a defective and invalid stipulated removal order in 2009 pursuant to an unlawful process that violated Roberto’s statutory, regulatory and due process in immigration court.” The attorneys argue that the defendant qualified for relief from removal in 2009 because of 1. Asylum, withholding of removal, and protection under the Convention Against Torture; and 2. Voluntary departure, the defective stipulated removal order not only violated his rights but also caused him prejudice.

“Statement of facts,” provided by the defense stresses that Orozco- Ramirez was sent by his family to the United States as a minor in protect him from the violence his family was experiencing in the late 1990s and early 2000s. The acts of violence included his father being kidnapped, his step-brother repeatedly kidnapped and beaten, and one step-brother completely disappeared likely as a result of a kidnapping.

Since coming to the U.S. in approximately 2000, Orozco-Ramirez has married and is the father to four sons who are U.S. citizens. He has built a successful diesel repair business in Froid. The statement reads, “He has community wide support for his release. The Roosevelt County sheriff does not believe him to be a danger.”

During September 2009, Orozco- Ramirez was detained as part of a generic sweep called Operation Community Shield. The detention ultimately resulted in his stipulated removal order just days later. “The 2009 stipulated removal order is the predicate of the government’s charges herein.”

Defense attorneys note that “The documents the government relies on were completed and dated Sept. 16, 2009, at 12 a.m. – within 30 minutes of his arrival at the local jail and at most a few hours from his apprehension.” He was given no time to consult with anyone including counsel.

The attorneys report that a special agent took about 5-10 minutes to go through all the forms with Orozco-Ramirez. The defendant believed that he had two options. 1. He could ask for a hearing and litigate his right to remain in the United States and it would delay the proceedings six months or more at which time he would be deported and would be unable to return, or 2. He could voluntarily depart the United States, which would occur nearly instantly and preserve his ability to return in the future. The defendant signed papers for this “voluntary departure.” The special agent did not provide the information that the document he signed functioned like a removal order and waived all his rights to a regular removal proceeding. The defense requests the court for an order dismissing the illegal reentry charge and declaring the 2009 stipulated removal order to be unconstitutional.

The defense argues, “In this case, Roberto wasn’t afforded any of the protections to which he was entitled, including a full and fair removal proceeding. He wasn’t given a valid NTA with a date certain at which he could be heard. He did not waive his right to a hearing to be held at least 10 days later, no hearing at all was held, and a removal order entered six days after his apprehension. He was not given a list of organizations and attorneys available to help at no cost – contrary to the forms executed by SA McClune and Roberto. He never had a hearing before and IJ (immigration judge), nor did any IJ ever explain his rights, inquire whether he knowingly, intelligently and voluntarily waived those rights, or explore whether he qualified for relief from removal – e.g., voluntary departure and asylum, withholding of removal and CAT protection – and advise him of his eligibility.”

Voluntary departure was plainly plausible for both pre- and post-conclusion of proceedings. “Roberto had no disqualifying criminal history identified in the record, maintained strong family and community ties, and demonstrated long term stability and responsibility. Voluntary departure would have preserved Roberto’s ability to lawfully reenter the United States and maintain family unity. The failure to advise Roberto of this option, combined with the suppression of his equities, deprived him of a meaningful chance to pursue relief that was well within reach and served to violate mandatory duties that are imposed on all IJs.”