to return, or 2. He ….
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.”
