United States v. Hernandez Velasquez

In United States v. Hernandez Velasquez, —- F.4th —-, No. 23-11170 (5th Cir. Nov. 8, 2024), the Fifth Circuit affirmed the district court’s decision to deny the defendant’s motion to dismiss the indictment. The court held that it was proper to place the burden on the defendant to “prove the invalidity of his waiver of rights in connection with the underlying deportation, rather than on the government to prove the waiver’s validity.”

Background: The Government had charged Hernandez Velasquez with illegally reentering the country after a prior deportation, in violation of 8 U.S.C. § 1326. Hernandez Velasquez moved to dismiss his indictment because he said the original removal order (based on which he had been deported) was “fundamentally unfair” because his “waiver of the immigration hearing and stipulation to removal was unknowing, unintelligent, and involuntary.” In one of his prior deportations, Hernandez Velasquez had been removed from the country after signing a “written stipulation waiving his rights and agreeing to his removal.”

In light of that written waiver, the district court placed the burden of proof on Hernandez Velasquez, and it found that he failed to meet that burden.

Held: The district court appropriately placed the burden on the defendant, and it was correct that Hernandez Velasquez failed to meet that burden.

When an illegal reentry charge is brought under 8 U.S.C. § 1326, the defendant may collaterally attack the underlying removal order, and the statute lists three requirements the defendant must meet to succeed in that attack. § 1326(d). One of those requirements is that the defendant must prove the entry of the original deportation order “was fundamentally unfair.” Here, however, as noted, Hernandez Velasquez had previously stipulated to his removal, so he could not now argue that the removal had been fundamentally unfair.

On appeal, Hernandez Velasquez argued that the district court erred by ruling that “where the Government has produced a written and signed waiver of rights, it is Defendant who must prove, by a preponderance of the evidence, that the waiver was invalid.” He pointed out that the Ninth Circuit has placed that burden on the Government, even when there is a written waiver signed by the defendant. United States v. Gomez, 757 F.3d 885, 893 (9th Cir. 2014).

The Fifth Circuit disagreed with the Ninth Circuit, and sided instead with the First, Third, Seventh, and Tenth Circuits, all of which have placed this burden on the defendant “to prove the invalidity of a signed written waiver.” The court offered three reasons for its decision.

First, the statute itself places the burden of collaterally attacking an underlying removal order on the defendant. § 1326(d). The court concluded that naturally, that must also mean a defendant bears the burden of proving his eligibility for an exception to the statutory requirements. Here, the court noted that the Ninth Circuit’s approach “would irrationally bifurcate the burden of proof” by requiring the Government to prove a waiver’s validity then on the defendant to prove that he suffered prejudice. Instead, the court allocated the entire burden to the defendant.

Second, “placing the burden on the government would ignore the import of the written and signed waiver itself.”

Third, the Ninth Circuit created a “false equivalence between waiver in a criminal proceeding in an Article III court and waiver in an immigration proceeding before an Article II immigration judge.” The Fifth Circuit rejected any analogy to fundamental constitutional rights, because the immigration waiver waived statutory rights, not “a fundamental constitutional right akin to protected rights during criminal prosecution.”