Citations
- 267 F. Supp. 3d 923
Full opinion text
MEMORANDUM OPINION
Andrew S. Hanen, United States District Judge
This case presents one of the most lamentable set of circumstances that this Court has ever been called upon to address. A young woman who was living and working in the United States, albeit illegally, who was by all accounts otherwise law abiding and was providing for her family to the best of her ability, was returned to her native Mexico and was soon thereafter killed. No one involved in this matter — not the parties, not the lawyers, and certainly not the Court — has anything but a profound sense of sadness about the disastrous chain of events -that ended in the decedent’s murder. The Plaintiffs lost their mother, and their family lost an individual whom they, no doubt, cherished and loved.
This is a case in which there will be no winners regardless of which way the Court rules. The parties and the Court are faced with a situation that can only be described as sorrowful: a young woman was killed, her estranged boyfriend has been convicted and jailed, and the survivors are left to deal with what remains. This lawsuit is no doubt part of an attempt to do just that— provide support for the young woman’s children and to help provide some sense of closure for all. While those involved must cope with their loss, the law requires that the Court remain objective. The lawyers in this matter have done their best to represent their respective clients. The Court will now address the pending motions, as it must, -without bias or sympathy.
' I. Procedural History
Pending before the Court is Defendants’ ■Motion for Summary Judgment [Defs,’ Mot. For Summ. J., Doc. No. 118], Plaintiffs’ Response [Pis.’ Resp, Doc. No. 123], Defendants’ Reply in Support [Defs.’ Reply, Doc. No. 129], and Plaintiffs’ Surreply [Pis.’ Surreply, Doc. No. 137].
Defendants previously filed a- motion to dismiss, which this Court denied. [Memo Op. & Order, Doc. No. 81]. Rejecting the Defendants’ argument that Laura Karina Flores Salazar (“Laura S.”) had no protected constitutional rights at stake, the Court ruled that Laura S. — though an illegal alien — was entitled to Fifth Amendment protection while in the United States in the custody of Custom and Border Patrol (“CBP”) officials. [Id, at 22]. After identifying the clearly established rights at stake, the Court ruled as a matter .of law that a waiver of those rights obtained through coercion would not be objectively reasonable in light of clearly established law. [Id. at 23].
The Court subsequently allowed limited discovery on the issue of qualified immunity. The Defendants have now fíléd a motion for summary judgment alleging: (1) that Agent Ruben Garcia (“Agent Garcia”) should be granted judgment as a matter of law, (2) that all Defendants are protected by qualified immunity, and (3) that Plaintiffs have not pleaded a legally cognizable claim. [Defs.’ Mot. for Summ. J., Doc. No. 118].
The Plaintiffs moved to strike part of Defendants’ Motion for Summary Judgment as Plaintiffs believed that Defendants impermissibly moved for summary judgment on the causal link between the Defendants conduct and Laura S.’s murder. [Doc. No. 121]. Among other topics, the Defendants’ Motion highlighted the great difficulty Plaintiffs would face in proving that Defendants’ behavior was the proximate cause of Laura S.’s death were this suit to proceed past the qualified immunity stage. Nevertheless, the Court denied the motion to strike, clarified that the sole issue before the Court on summary-judgment would be . qualified immunity, and explained that the Court would only consider those parts of the pleadings that relate to the issue of qualified immunity. [Doc. No. 122]. Consistent with that order, the Court will consider only the issues related to qualified immunity that have been .raised in Defendants’ Motion for Summary Judgment. The Court waited on the United States Supreme Court to rule in the cases of Hernandez v. Mesa, — U.S. -, 137 S.Ct. 2003, 198 L.Ed.2d 625 (U.S. 2017) and Ziglar v. Abbasi, — U.S. —, 137 S.Ct. 1843, 198 L.Ed.2d 290 (U.S. 2017) as both, cases contained issues which could have impacted this case. The Supreme Court released both capes during the last two weeks of its term leaving no impediment to this Court’s ruling.
II. Factual Background
While most of the key facts are in dispute, some facts are either agreed, to or conceded for purposes of this Motion. The Plaintiffs in this case are the three surviving children of Laura S. Laura S. was born in Mexico,' and despite having no legal status in the United States, lived here at various times in her life. For many years, Laura S. suffered physical abuse at the hands of her then boyfriend and the father of two of the Plaintiffs, Sergio Misael Hernandez (“Sergio H,”). In 2008, Sergio H. threatened to kill Laura S. In response, Laura S. — "-fearing for her life — obtained a protective order against Sergio H, from a municipal court in McAllen, Texas. At some point, prior to the key events" covered by this Motion, Sergio H. returned, to Mexico and was allegedly, working for a drug cartel.
Though Sergio H,’s physical proximity was no longer a problem for Laura S. given,that she remained in .the United States (albeit illegally), Plaintiffs claim that Sergio H. still posed a danger to her as he threatened Laura S. that he would kill her if he ever saw her again. According to Plaintiffs, Laura S. was, worried that Sergio H. would follow through on his threat and murder her if she was deported to Mexico. The claims at bar result from the events preceding Laura S.’s death, whilé she'was in CBP custody at CBP’s processing center in Weslaco, Texas.
On the early morning of June 8, 2009, Laura S.- was-driving a car near Pharr, Texas with three passengers: her cousin Elizabeth Alvarez (‘(Alvarez”) and friends Arturo Morales (“Morales”) and Saray Cardiel (“Cardiel”).-The four were allegedly on their way to a popular 24-hour hamburger restaurant around 2:00 AM when they were stopped by a police officer for a driving infraction. The officer asked the four passengers for proof of citizenship or immigration status. Alvarez had a “laser visa” which allowed her to legally cross back and forth from Mexico and the United States. Laura S., Cardiel, and Morales were unable to satisfy the officer’s request, and the officer subsequently notified CBP. According to Plaintiffs, Laura S., fearing deportation, began to weep and told the officer that Sergio H. would harm her if she was forced to return to Mexico.
The officer released the group, minus Alvarez, to Agent Ramiro Garza,' a CBP agent (“Agent Garza”). Since Laura S. had been driving the vehicle when stopped, Alvarez stayed behind with the police officer and waited for her mom and aunt to pick her up. Laura S. apparently told Agent Garza a similar story — that she feared returning to Mexico because of Sergio H. and that she needed additional time to produce her protective order. Agent Garza placed Laura S., Cardiel, and Morales in his vehicle, and transported them to a CBP processing center in Weslaco, Texas. Laura S. allegedly continued to weep, plead, and beg for release during the entire ride to the CBP processing center.
Agent Garza, Agent Garcia, and other unknown CBP agents processed Laura S., Cardiel, and Morales with varying degrees of involvement. Morales was processed separately from Laura S. and Cardiel. Agent Garza and another CBP agent fingerprinted and interviewed Laura S. and Cardiel and presented each of them with a Form 1-826. This form requires an illegal alien to make a choice from three options, one of which results in voluntary return to one’s country of origin. Laura S. reviewed and signed the Spanish version of Form I-826. [See Defs.’ Ex. 2, Doc. No. 119-2 at 4].
Form 1-826 includes a “Notice of Rights.” The Court quotes the translation included as part of the summary judgment evidence. Form 1-826 states in part:
You have been arrested because immigration officers believe that you are illegally in the United States. You have the right to a hearing before the Immigration Court to determine whether you may remain in the United States. If you request a hearing, you may be detained in custody or you may be eligible to be released on bond, until your hearing date. In the alternative, you may request to return to your country as soon as possible, without a hearing.
You have the right to contact an attorney or other legal representative to represent you at your hearing, or to answer any questions regarding your legal rights in the United States. Upon your request, the officer who gave you this notice will provide you with a list of legal organizations that may represent you for free or for a small fee. You have the right to communicate with the consular or diplomatic officers from your country. You may use a telephone to call a lawyer, other legal representative, or consular officer at any time prior to your departure from the United States.
[Id. at 5] (emphasis added).
Under the “Notice of Rights” section on Form 1-826 is a section titled “Request for Disposition.” This section offered Laura S., as with all similarly situated immigrants, a choice of three options: (1) request a hearing before the immigration court to determine whether she could stay in the United States, (2) indicate that she believed that she would be harmed if she returned to Mexico and have her case referred to the immigration court, or (3) acknowledge her unlawful presence and be repatriated to Mexico. [See id.] The options were presented to her in a list format and separately delineated. [See id.] Next to each option is a checkable blank box designed to show the selection of one option to the exclusion of the others. [See id] Adjacent to the blank box for each of the three options is a corresponding blank line for the alien to initial the selected option. [See id] The first two options offer the opportunity to remain in the United States pending a hearing (although one might have to remain in custody). The third choice obviously results in one being repatriated back to one’s home country.
Laura S. placed an “x” in the box corresponding to the voluntary return option and initialed on the line next to the checked box affirming her selection. [See id. at 4]. Laura S.’s full signature also appears under her initials, along with the date on which she signed. [See id.] The actual form Laura S. signed follows in its entirety:
[Id.] Laura S. had been repatriated to Mexico before in 2002 and 2005, and allegedly signed nearly identical forms in 2002 and 2005, selecting the voluntary return option both times. [See Defs.’ Ex. 3, Doc. No. 119-3 at 4; Defs.’ Ex. 4, Doc. No. 119-4 at 4].
According to Plaintiffs, after being presented with Form 1-826, Laura S. — weeping, visibly frightened, and anguished— told the agents that Sergio H. had long battered her and that she had a protective order against him. The agents allegedly ignored Laura S.’s fears about returning to Mexico. As claimed by Plaintiffs, Laura S. told .the agents that Sergio H. would- Mil her if she returned to Mexico, but the agents ordered Laura S. and Cardiel to sign Form 1-826 anyways. Laura S. apparently twice refused to sign the form, and at one point, frustrated with her circumstances, described them as “an injustice.” Both -Laura S. and Cardiel each eventually signed an 1-826.
Agent Garcia was a supervisor the morning Laura S. was processed. The extent of Agent Garcia’s involvement with Laura S. is disputed. Plaintiffs allege that he was personally involved in the violation of Laura S.’s constitutional rights. According to Defendants; Agent Garcia -had little to no involvement outside of a high-level supervisory level function, and it is' questionable as to whether Agent Garcia even interacted with Laura S. on the day she was processed.
After Laura S., Cardiel, and. Morales each chose the voluntary return option and signed Form 1 — 826, Agent Garza drove them to the Hidalgo-Reynosa Bridge in Hidalgo, Texas to return the group to Mexico. Laura S. allegedly continued to express her -fear of the danger she believed awaited her in Mexico. After crossing the bridge in the early morning, Laura S. went to her grandmother’s house in Reynosa, where she eventually reunited with Alvarez. Alvarez claims that Laura S. was trying to raise enough money to return to the United States with the assistance of coyotes, or human traffickers. Tragically, Sergio H. murdered Laura S. a few days later.
III. Legal Standard
Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once a movant submits a properly supported motion, the burden shifts to the non-movant to show that the court should not grant the motion. Celotex Corp., 477 U.S. at 321-25, 106 S.Ct. 2548.
The non-movant then must provide specific facts showing that there is a genuine dispute. Id. at 324, 106 S.Ct. 2548; Matsushita, Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A dispute about a material- fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must draw all reasonable inferences in the light most favorable to the nonmoving party in deciding a summary judgment motion. Id. at 255, 106 S.Ct. 2505. The key question on summary judgment is whether a hypothetical, reasonable factfinder could find in favor of the nonmoving party. Id. at 248, 106 S.Ct. 2505. Since the question on a possible appeal, is whether the Plaintiffs have presented evidence that creates an issue of material fact, this opinion concentrates sometimes to’ the point of repetition on the factual presentation.
IY. Analysis
A. Is There Evidence That Raises a Material Fact Issue as to Whether Agent Garcia Violated Laura S.’s Constitutional Rights?
Agent Garcia argues that he is entitled to summary judgment against Plaintiffs’ claims because Plaintiffs have not shown that he personally violated Laura S.’s constitutional rights. The Court considers this separately from Agent Garcia’s possible entitlement to the defensive shroud of qualified immunity. Obviously if there is no evidence of wrongful conduct, there would be no question that Agent Garcia is entitled to immunity. Agent Garcia claims that Plaintiffs have not produced any evidence suggesting any personal interaction with Laura S., much less any wrongful conduct, and are instead attempting to sue Agent Garcia on a legally impermissible theory of respondeat superior liability.
“[Ijndividual government officials cannot be held liable in a Bivens suit unless they themselves acted unconstitutionally.” Wood v. Moss, — U.S. -, 134 S.Ct. 2056, 2070, 188 L.Ed.2d 1039 (2014) (citing Ashcroft v. Iqbal, 556 U.S. 662, 683, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (internal quotation marks omitted). A plaintiff can not rely on respondeat superi- or liability when bringing a Bivens suit against an individual government official. Iqbal, 556 U.S. at 683, 129 S.Ct. 1937. This concept was recently reaffirmed by the Supreme Court in Ziglar. “The purpose of Bivens is to deter the officer ... Bivens is not designed to hold officers responsible for acts of their subordinates.” 137 S.Ct. at 1860 (internal citations omitted). A supervisory federal official may be held liable only upon two bases: (1) personal involvement in the acts causing the constitutional violation or (2) if the official implements a policy so deficient that the policy itself acts as a deprivation of constitutional rights. Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998).
Defendants argue that though Agent Garcia was a supervisor at the CBP processing center in Weslaco the morning Laura S. was processed, there is no evidence that- he personally violated Laura S.’s constitutional rights. In his capacity as a processing supervisor, Agent Garcia was responsible for working on employee schedules and performance ratings, monitoring the radio, and serving as a direct supervisor to Agent Garza, among others. [Garcia Dep. 49:13-16, 57:16-18, 50:10-11, Apr. 20, 2016]. Agent Garza and other CBP agents would therefore direct any questions or problems they had in processing, an individual to Agent Garcia on the morning Laura S. was processed. [See Garcia Dep. 119:19-25;. Garza Dep. 81:17-19, 93:3-9, 100:23-25, 101:1-3, Apr. 21, 2016].
It is undisputed that Agent Garcia signed off on Laura S.’s Record of Deport-able/Inadmissible Alien form (Form I-213). [See Defs.’ Ex. 2, Doc. No. 119-2 at 1]. Nevertheless, Agent Garcia swears that, though it was possible that he was at some time actually in Laura S.’s presence, he can not remember if he actually was or was not. [Garcia Dep. 116:20, 121:1-3]. Agent Garda’s post was physically located in a separate room from the area where Laura S. was processed. [Id. at 52:18-20, 65:5-8,169:21-24].
The Plaintiffs do not provide any summary judgment evidence directly linking Agent Garcia to Laura S.’s processing aside from his signature on the 1-213 form. Instead, Plaintiffs point out that Cardiel and Morales observed other CBP agents in Laura S.’s presence apart from Agent Garza, and that if Laura S. were to have expressed a'fear of returning to Mexico, and if the CBP agents had followed the normal routine, they would have involved Agent Garcia in his role as a processing supervisor. [Cardiel Dep. 47:25, 48:1, Apr. 13, 2016; Morales Dep. 27:13-17, Nov. 7, 2013; Garza Dep. 157:19-21].
The testimony of Agents Garcia and Garza provide that if a detainee indicated a fear of returning to Mexico, or made a commotion, that the processing supervisor would get involved. [Garza Dep. 189:22-25, 190:3-4; Garcia Dep. 83:15-23, 87:8-14, 88:3-6, 16-25]. The Plaintiffs argue that because Agent Garcia was the on-duty supervisor the morning Laura S. was detained and there is witness testimony to the effect that multiple officers interacted with Laura S., the standard practice of supervisory involvement in processing a detained alien who expresses a fear of returning leads to the. conclusion that Agent Garcia personally violated Laura S.’s constitutional rights. This is, at best, speculation.
The Plaintiffs have not provided' any evidence suggesting that Agent Garcia actually] personally violated Laura S.’s constitutional rights or had any contact with her at all. Even given the most charitable interpretation, they have identified Agent Garcia’s presence as a supervisor who should have, under the facts as they interpret them, interacted with Laura S — but this is no proof Agent Garcia did. Cardiel and Morales testified that there was more than one CBP agent in the processing center, yet could not identify any one of the other agents aside from Agent Garza. [See Morales Dep. 30:1-16, 31:1-6; Cardiel Dep. 41:16-18]. Cardiel could not even identify Agent Garcia when shown his photograph. [Cardiel Dep. 77:23-25, 78:1-22]. The Plaintiffs’ sole focus is .derived from Agent Garcia’s . potential involvement through his role as a supervisor.
' The Plaintiffs have the burden of creating a contested fact issue for the eventual factfinder. Here, Agent Garcia admits that it was “possible” that he was at some point in time in Laura S.’s presence. [Garcia Dep. 121:1-3]. Nevertheless, the leap to establishing a constitutional violation on Agent Garcia’s part is far too tenuous. There is no evidence that Agent Garcia was one of the agents who allegedly violated Laura S.’s constitutional rights. The Court can not, without- evidence, on a motion for summary judgment, assume Plaintiffs’ preferred chain of events.
The Plaintiffs’ evidence falls short of linking Agent Garcia to any constitutional violation of Laura S.’s rights. At most, the Court is left with a two-step hypothetical: that (1) Agent Garcia should and would have been called into the processing area after Laura S. expressed a fear of returning to Mexico, and (2) once there, that Agent Garcia personally violated Laura S.’s constitutional rights. The fact that he should have been brought into the processing area at some point, even if true, does not create the disputed issue of fact necessary to maintain a Bivens suit against Agent Garcia. As there is no competent evidence before the Court that Agent Garcia had any involvement in any alleged violation of Laura S.’s rights, it is not necessary to discuss in detail if a triable issue of fact exists as to whether Agent Garcia acted in an objectively unreasonable manner for purposes of the qualified immunity analysis. He is entitled to judgment both on the merits and on the issue of qualified -immunity. Agent Garcia’s Motion for Summary Judgment is granted.
B. Is Agent Garza Entitled to Qualir fied Immunity?
As discussed earlier, the Court denied the Defendants’ Motion to Dismiss for failure to state a claim in regard to Defendants’ qualified immunity defense. The Court ruled, as a matter of law, that Laura S. was entitled to Fifth Amendment due process protections in the deportation process. [Memo Op. & Order, Doc. No. 81 at 22]. The Court also held, from the totality of the circumstances alleged in Plaintiffs’ Complaint, that Agent Garza was not entitled to a Rule 12(b) dismissal due to the qualified immunity defense. [Id. at 24]. Due to this ruling, the Court allowed limited . discovery to .uncover only those -facts the parties needed in order to address the immunity claim. [Memo Op. & Order, Doc. No. 115 at 3], With respect to Agent Garza, the sole issue presented regarding the applicability of the qualified immunity defense on summary judgment is whether a contested issue of fact exists as to whether Laura S. was coerced into choosing to return to Mexico.
Qualified immunity, shields government officials-, “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The concept of qualified immunity has broad application to officers acting in their official capacity. The Supreme Court has summarized its reach by saying it applies to and protects “all but the plainly incompetent or those who knowingly violate the law.” Ziglar, 137 S.Ct. at 1867 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). Determining whether a government official may be clothed in the defense of qualified immunity involves a two-step process in a 12(b) context. “First, a court must decide whether a plaintiffs allegation[s], if true, establishes a violation of a clearly-established right.” Hernandez ex rel. Hernandez v. Tex. Dep’t of Protective & Regulatory Servs., 380 F.3d 872, 879 (5th Cir. 2004). Second, “a court must decide whether the conduct was objectively reasonable in light of clearly established law at the time of the incident.” E.A.F.F. v. Gonzalez, 600 Fed.Appx. 205, 209 (5th Cir. 2015), cert. denied, — U.S. -, 135 S.Ct. 2364, 192 L.Ed.2d 147 (2015). A defendant’s assertion of qualified immunity “alters the usual ... burden of proof.” Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015) (quoting Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)). In the summary judgment context, the plaintiff thus bears the burden of proof to show a genuine and material factual dispute as to whether the official is entitled to qualified immunity. Id.
“Immunity ordinarily should be decided by the court long before trial.” Hunter v. Bryant, 502 U.S. 224, 228, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991). Qualified immunity is “an immunity from suit rather than a mere defense to liability ... it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis deleted). Where there remain disputed issues of material fact related to immunity, the jury, if properly instructed, may decide the question. Snyder v. Trepagnier, 142 F.3d 791, 800 (5th Cir. 1998) (quoting Presley v. City of Benbrook, 4 F.3d 405, 410 (5th Cir. 1993)) (internal quotation marks omitted). The denial of a motion for summary judgment.based on qualified immunity is immediately appeal-able under the collateral order doctrine to the extent that it turns on an issue of law. Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004) (quoting Mitchell, 472 U.S. at 530, 105 S.Ct. 2806) (internal quotation marks omitted).
1. Review of the Summary Judgment Evidence and Legal Objections
As stated earlier, this Court has already held that Laura S. had clearly established rights governed by the 'United States Constitution. Though the Court previously ruled Laura S. was entitled to Fifth Amendment protections which would include an immigration hearing if requested, [Memo Op. & Order, Doc. No 81 at 9], “due process rights, including the right to a hearing, can be waived,” See United States v. Cordova-Soto, 804 F.3d 714, 720 (5th Cir. 2015). While due process rights may be waived, any waiver must be done knowingly and voluntarily. McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009). In analyzing whether a waiver was made knowingly and voluntarily, courts “must indulge in every reasonable presumption against a waiver,” Nose v. Attorney Gen. of U.S., 993 F.2d 75, 79 (5th Cir. 1993) (emphasis added). The constitutional sufficiency of the procedures required by due process differs with the circumstances of each individual case. United States v. Benitez-Villafuerte, 186 F.3d 651, 656 (5th Cir. 1999). The “full, range of constitutional protections available to a defendant in a criminal case are not afforded an alien in a deportation proceeding.” Id. at 657.
For purposes of this Motion, the key issue is whether Laura S. was coerced into choosing the voluntary return option. Agent Garza argues that he is entitled to qualified immunity because there is no competent summary judgment evidence that Laura S. was coerced into opting for a voluntary return to Mexico. The Court will first summarize the summary judgment evidence provided by both parties and resolve the- .evidentiary objections raised. Next, though this necessarily entails some repetition,- the Court will next determine whether an issue of fact exists as to whether Laura S. knowingly signed Form 1-826 and finally it will decide if a fact issue exists as to whether Laura S. voluntarily signed the form. Obviously, due to the death of Laura S., the primary witnesses are the two defendants, and Alvarez, Car-diel, and Morales. All have been deposed, and their depositions are part of the summary judgment record.
i. Alvarez
Elizabeth Alvarez, Laura S.’s cousin, had known Laura S. for her entire life. [Alvarez Dep. 9:1-5, Oct. 23, 2015]. When asked to describe her relationship with Laura S., Alvarez responded that they were best friends. [Id. at 9:14-16]. Alvarez was aware of Laura S.’s violent history with Sergio H. and of the protective order Laura S. obtained against Sergio H. [See id. at 11:1-25, 12:11-25], Alvarez was with Laura S,, Morales, and Cardiel when they were first apprehended by the police officer. [Id. at 15:15-21], When the police officer. informed the, group that he was going to call,an immigration, officer, Alvarez stated that Laura S. told him not to do so because she was scared of being killed in Mexico. [Id. at 16:6-18]. Laura S. told the police officer that Sergio H. was working for Mexican cartels and that he would be able to,follow through on his threat to kill her if she returned. [Id.] Laura S. asked the police officer to wait so she could prove that she had a protective order against Sergio H. [Id. at 16:19-24].
When Agent Garza arrived, according to Alvarez, Laura S. began to cry, tremble, and shake. [Id. at 17:15-17]. Laura -S. told Agent Garza that Sergio H. had threatened her life, that she did not want to be deported, and asked for additional time to get a copy of her protective order. [Id. at 17:14-22]. Alvarez testified that Laura S. informed Agent Garza that her youngest child needed to undergo a medical operation and that Laura S. had to be in the United States for the procedure. [Id. at 18:7-10, 22:11-12]. As Laura S. spoke Spanish, Alvarez translated the message to Agent Garza in English to make sure he understood Laura S. [Id. at 5:22-25], According to Alvarez, in response to Laura S.’s pleas, Agent Garza just laughed. [Id. at 17:22-25]. Alvarez had a laser visa, but the rest of the group was undocumented, and Alvarez watched as Agent Garza loaded Laura S., Cardiel, and Morales into his vehicle. [See id. at 18:14-16]. Alvarez testified that Laura S. was crying the entire time. [Id.] Alvarez stayed behind, waiting for her aunt and mother to pick her up as Agent Garza took Laura S., Cardiel, and Morales to the CBP processing center. [Id. at 18:21-23].
Alvarez reunited with her cousin the next morning, after Laura S. had been repatriated back to Mexico, at their grandmother’s house in Reynosa. [Id. at 19:10-12]. Alvarez testified that in front of them grandmother and other people, Laura S. acted “normally.” [Id. at 19:15-17]. Once Alvarez and Laura S. were alone, however, Laura S. acted scared, was shaking and smoking cigarettes, and seemed desperate. [Id. at 19:15-19, 21:1-4]. The “first thing” that Laura S. said to Alvarez when they were alone was that “[t]hose assholes threw me out.” [Id. at 19:20-22]. Alvarez testified that Laura S. was seeking to cross the border again to get out of the reach of Sergio H. but would need the help of “coyotes,” or border smugglers. [Id. at 21]. Before Laura S. was killed, she was trying to save enough money to get back over the border, an amount Alvarez testified could cost around $1,500. [Id.]
Agent Garza objects to this portion of Alvarez’s testimony on hearsay grounds. Alvarez, though initially apprehended with Laura S., was not processed with Laura S. Instead, Alvarez visited Laura S. at their grandmother’s house after she returned to Mexico. The testimony Agent Garza singles out is Alvarez’s recounting of her conversation with Laura S. about the events at the CBP processing center in Weslaco when the pair reunited at their grandmother’s house in Reynosa.
At first, in front of Alvarez, their grandmother and other unidentified people, Laura S. acted “normally.” [Id. at 19:15— 17], Once, alone with Alvarez, Laura S. began to shake, and was scared and desperate. [Id. at 19:15-19, 21:1-4]. Alvarez then testified that she heard Laura S. exclaim: “[t]hose assholes threw me out!” [Id. at 19:20-22]. The Defendants argue that the latter portion of this statement is offered for the truth of the matter asserted (that Laura S. was thrown out against her will), and that the statement does not fall into any applicable hearsay exception. The proponent of hearsay evidence bears the burden of proving the applicability of an exception. United States v. Fernandez-Roque, 703 F.2d 808, 812 (5th Cir. 1983).
Plaintiffs contend that Laura S.’s statement qualifies as a present sense impression. [Pls.’ Resp., Doc. No. 123 at 28]. The present sense impression exception to hearsay provides that a “statement describing or explaining an event or condition, made while or immediately after the declarant perceived it” is exempt from the hearsay rule. Fed. R. Evid. 803(1) (emphasis added). The justification for this hearsay exception relies on the contemporane-ousness of the event under consideration and the statement describing that event. Rock v. Huffco Gas & Oil Co., Inc., 922 F.2d 272, 280 (5th Cir. 1991). Since the event and the statement occur almost simultaneously, there is almost no “likelihood of [a] deliberate or conscious misrepresentation.” Id. (citations omitted).
The Defendants argue that Laura S.’s statement references the alleged coercive act at issue — the signing of the 1-826 form. The Defendants use that point to calculate the time between when Laura S. signed the 1-826 form and Laura S.’s statement to Alvarez in Reynosa as being, in the light most favorable to the Plaintiffs, approximately 3.5 hours. [See Defs.’ Reply, Doc. No. 129 at 18-23]. The Plaintiffs agree that the statements refer to the events at the CBP processing center in Weslaco, [Pls.’ Resp., Doc. No. 24 at 28], but argue that the timer should start at the actual time Laura S. was walked back into Mexico rather than the time she was allegedly coerced to sign. [Pls.’ Surreply, Doc. No. 137 at 9].
The core dispute between Plaintiffs and Defendants is when the Court should start the clock. Technically, the point when Laura S. waived (allegedly) her right to stay in the United States for additional processing was the point when she completed the I-826 form. If, as Plaintiffs argue, Laura S.’s reference to being “kicked out” also attached to the time when Laura S. crossed the border, there is nothing to suggest that Plaintiffs could not extend the relevant “event or condition” to any point until Laura S.’s murder. While the Court does not perceive this dispute as critical to the overall resolution of the issue presented in this case, in order to resolve it, the Court must draw the line somewhere. The Plaintiffs could just as easily argue that an identical statement made by Laura S. to Alvarez should fall under the exception if the pair happened to meet a week or two later, when Laura S. was trying to raise money for her return to the United States.
The Plaintiffs seek to use Laura S.’s outburst to establish that the events in the CBP processing center, to which Alvarez was not privy to, included coercion on part of Agent Garza. The Plaintiffs provide the Court with no exact timeline to calculate the time passed between the signing of the waiver form and Laura S.’s statement in Reynosa. Nevertheless, even if the Court were to give Defendants’ calculation of the timeline a significant haircut, Laura S.’s statement to Alvarez would not qualify as one made “while or immediately” after Laura S. perceived the event in question. See United States v Cain, 587 F.2d 678, 681 (5th Cir. 1979) (holding that a statement made 15 minutes after the perceived event did not satisfy Rule 803(1)).
The Plaintiffs also argue that Laura S.’s hearsay statement passes muster under the excited utterance exception. [Pis.’ Resp., Doc. No. 123 at 28], Rule 803(2) provides that a “statement relating to a startling event, or condition, made while the declarant was under the stress of excitement that it caused” is admissible as an exception to hearsay. Fed. R. Evid. 803(2). Unlike the present sense impression exception, the excited utterance exception is not determined solely based on the period of . time that elapsed between a statement and the event it references. United States v. Hefferon, 314 F.3d 211, 223 (5th Cir. 2002). Instead, under Rule 803(2), the key factor is “spontaneity.” Fed. R. Evid. 803(2) Advisory Committee’s Note. The statements in question must be spontaneous, excited, or impulsive rather than the product of reflection and deliberation. United States v. Lawrence, 699 F.2d 697, 704 (5th Cir. 1983).
Whether a statement qualifies as an excited utterance is a case-by-case determination, but the core focus for the court is the existence of a startling event or condition that provokes the utterance. See Hefferon, 314 F.3d at 222 (reviewing treatment of factors such as age, possibility of fabrication, and coaching as relevant to whether a statement qualifies as an excited utterance). Where the court is satisfied that the event in question was such as to cause adequate excitement, the inquiry is ended. 2 K. Broun, McCormick on Evidence § 272 (7th ed. 2013).
Though a sufficient cooling period may preclude-a statement from the exited utterance exception, courts have found statements to fall under the exception even when made as far as weeks after the “startling” event in question, See, e.g., United States v. Napier, 518 F.2d 316, 317 (9th Cir. 1975) (finding that'a statement made by a victim of an assault after looking at a photograph of the assailant nearly eight weeks after the assault was properly admitted under the excited utterance exception because the victim was .sufficiently excited by the photograph). As with the present sense impression, exception, the proponent of the hearsay evidence bears the burden of proving the excited utterance exception. See Fernandez-Roque, 703 F.2d at 812.
The Defendants argue that Laura S.’s statement to Alvarez was (1) not spontaneous, and (2) was not made while Laura S. was upset about the events at the processing center at Weslaco. [Defs,’ Reply, Doc. No. 129 at 33]. In support, Defendants focus on this exchange:
Counsel: And so I ‘ think it makes it pretty cléar how she felt, but when she said that to you, “[t]hey threw me out,” how did — how was she feeling about being back in Reynosa?
Opposing Counsel: Object to the question. Speculation.
Alvarez: Obviously she felt scared that (Sergio H.) would look for her, find her, and go through with the death threat that he had already made.
[Alvarez Dep. 19:23-25, 20:1-6]. The Defendants argue that Alvarez did not indicate that Laura S.’s fears were inspired by the events in the CBP processing center, but rather Alvarez testified that Laura S.’s fears were motivated by Sergio H, The Plaintiffs respond that first. Defendants ignore the “integrated situation as a whole” — and insist .that this Court’s analysis should encompass the events at the CBP processing center in Weslaco and the return to Mexico. [Pls.’ Surreply, Doc. No, 137 at 8], The Plaintiffs add that, “in any ease,” regardless of the precise time of day the two cousins met or how the “event at issue is defined,” Laura S. was under the stress of excitement caused by the events her statement described, [Id]
■ Whether the Couit considers the “integrated situation as a whole” or per Alvarez’s deposition testimony looks, solely to Laura S.’s excited state at her grandmother’s house — Laura S.’s utterance does not fall under the excited utterance exception. An excited utterance must be “impulsive” rather than the product of “reflection or deliberation.” Lawrence, 699 F.2d at 704. Regardless of whose timeline one believes, the reunion at Laura S.’s grandmother’s house was too attenuated for Laura S. to remain in an excited state.
More importantly, Alvarez’s testimony, itself, proves that Laura S.’s outburst was not an excited utterance. She avers that while Laura S. was in front of their grandmother, she acted quite “normally.” She clearly had the ability to control her emotions and “excitement.” Only when they were alone did she express her outrage. This is not an excited utterance. Though the dispositive question before the Court is not the lapse of time between'the startling event and the statement, the combination of the cooling off period and Laura S.’s complete composure while in the presence of her grandmother and others,establishes that Laura S.’s statement to Alvarez was the product of deliberation and reflection, undercutting the reliability that a “spontaneous” statement would' offer per Rule 803(2).
The Plaintiffs, as proponents of the admission of hearsay evidence, have not met their burden to show that Laura S.’s statement to Alvarez related to the- startling event or condition Plaintiffs seek to use the statement to prove — that Laura S. was coerced inside the CBP processing center. The Court agrees with Defendants that Laura S.’s statement to Alvarez as quoted above is inadmissible hearsay. Due to the lack of probative value which one may glean from this statement, this evidentiary ruling, however, is not critical to the-issue currently before the Court.
ii. Cardiel
Cardiel was with Laura S. from when she, Laura S., Alvarez, and Morales, were first apprehended by the police officer near Pharr, Texas. Cardiel was a co-worker. and was aware of Sergio H.’s violent history and that Laura S. had a protective order against him. [Id. at 22:16-20, 23:15— 20]. Cardiel, who was also in the United States illegally, claims that after the police officer called for an immigration officer, Laura S. told the officer that he should not have called. [Id. at 30:20-21], Cardiel testified that Laura S. told the police officer that she had a protective order and that she did not want to go back to Mexico, but Cardiel could not recall whether Laura S. identified Sergio H. as the source of her apprehension, [Id. at 31:9-12, 32:6-7].
After Agent Garza arrived, Cardiel testified that Laura S. -told Agent Garza over and over again that she did not want to go Mexico because Sergio H. would kill her. [Id. at 34:3-10]. While being transported in the CBP vehicle with Laura S. on the way to the CBP processing center, Cardiel stated that Laura S. was crying and weeping and that Laura S. told Agent Garza about her fear of returning to Mexico because of Sergio H. [Id. at 36:8-16, 37:4-10]. Once at the CBP processing center in Weslaco, Cardiel testified that she overheard Agent Garza say to an unidentified agent that he was in a rush and that he had to leave. [Id. at 43:7-10]. Cardiel averred that Agent Garza and another agent presented the 1-826 forms to both Cardiel and Laura S. [See id. at 43:14-16]. According to Cardiel, the agents indicated to Laura S-. and Cardiel “in a strong” and “ordering” manner that Laura S. and Car-diel “had to go to Mexico.” [Id. at 43:14-19].
Cardiel testified that Agent Garza and the unknown agent did not yell, but that they used a “high volume voice.” [Id. at 43:20-22]. Agent Garza and the unknown agent told Cardiel and Laura S. that the agents needed to leave and that they needed to drop off Cardiel and Laura S. at the bridge to Mexico. [Id. at 45:1-4]. Laura S. told the agents about her protective order and about her fears of going back to Mexico. [Id. at 45:3-20]. According to Cardiel, Agent Garza “mock[ed]” her and Laura S. and told the pair that they “ha[d] to sign.” [Id. at 45:2-5]. Cardiel testified that the agents looked annoyed. [Id. at 43:14-16, 44:22-25].
According to Cardiel, Laura S. refused to sign twice and stated: “this is an injustice.” [Id. at 45:23-24, 69:16-19.]. Cardiel testified that Agent Garza and the other agent pointed firmly to the signature lines on the 1-826 forms and ordered the pair to sign. [Id. at 69:9-14]. Cardiel claimed that both she and Laura S. refused to sign the 1-826 forms. [Id. at 44:25, 45:1-2]. Cardiel averred that Laura S.’s intelligence was “very good” and that Laura S. never indicated to Cardiel- that she had any mental disorder. [Id. at 24:17-25],
Cardiel gave a number of contradictory reasons why she, herself, eventually signed Form 1-826. One explanation was that she signed the form because Agent Garza and the unidentified agent were armed and that she could tell they “wanted to throw [Laura S. and Cardiel] back.” [Id. at 46:2-5], Nevertheless, according to Cardiel, the agents had their handguns holstered. [Id. at 46:6-8]. Cardiel was unrestrained, was not handcuffed, and was not physically forced to sign the 1-826 form. [Id. at 44:1-12], The agents did not threaten Cardiel or her family. [Id. at 44:13-16]. Cardiel testified that she did not think the agents would hurt her if she refused to sign but was instead worried that the agents would “lock [her] in for a long period of time.” [Id. at 71:1-8]. When asked whether she felt threatened if she did not sign the form, Cardiel answered “[y]es,” [Id. at 72:22-24].
Asked to clarify the manner in which she felt threatened, Cardiel testified that she felt threatened because she did not want to be locked up on account of her children. [Id. at 72:5, 73:1-2] (“I didn’t want to be locked in because I [had] children”). When asked whether she signed Form 1-826 because it was the fastest way to be released from custody, Cardiel again answered, “[y]es.” [Id. at 73:3-5]. Cardiel also averred that she and Laura S. signed because they “had no choice,” since the agents “didn’t tell [them] that [they] could see a judge or anything.” [Id. at 70:14-22]. Cardiel had prior experience with voluntary return but averred that she was not made aware of her option to see an immigration judge in 2009. [Id. at 72:1^-20]. She testified that, in her prior experience with voluntary return, she was told that she could go see an immigration judge. [Id. at 71:16-23]. Cardiel testified that she recalled Laura S. at one point saying that she did not want to sign because she did not want to go back to Mexico. [Id. at 46:13-16].
After the pair signed the 1-826 forms, Agent Garza took Cardiel, Morales, and Laura S. to the Hidalgo-Reynosa Bridge to cross over to Mexico. [Id. at 48:5-12], On the way to the bridge, Cardiel claims that Laura S. told Agent Garza: “If I am killed, you will carry that in your conscience.” [Id. at 49:6-8]. Cardiel testified that between 20 or 30 minutes passed from the point when officers showed Cardiel the 1-826 form and when Cardiel signed the form, though Cardiel estimated that the entire process took about three to four hours. [Id. at 47:4-15].
In Mexico, Cardiel accompanied Laura S. to Laura S.’s grandmother’s house, but then left Laura S. to go to her relative’s house. [Id. at 51:2-9]. She met up with Laura S. later that day at a bus station, where Laura S. asked Cardiel if there was someone who could take Laura S. back to the United States because Sergio H. had been looking for her. [Id. at 51:8-22]. Car-diel would never see Laura S. again. At some point after her meeting with Laura S., Cardiel swam back to the United States through the Rio Grande river and returned to her house in Pharr. [Id. at 52:14-23], There, Cardiel received a call from a common friend that Laura S. had been killed. [Id. at 54:10-14]. Cardiel paid to swim the river, but could not recall how much she paid. [Id. at 52:24-25, 53:1-6]. When asked whether Laura S. could swim, Cardiel could not recall whether Laura S. could or could not. [Id. at 53:13-14].
Defendants object to the part of Car-diel’s testimony where she was questioned as to the exact reason why she thought Laura S. signed Form 1-826. [Defs.’ Mot. for Summ. J., Doc. No. 118 at 34]. When Cardiel was asked whether or not she knew why Laura S. signed the 1-826 form after refusing to do so two times, she answered “no.” [Cardiel Dep. 46:24-25, 47:1-3]. From this exchange, Defendants argue that Cardiel had no personal knowledge as to why Laura S. signed the form.
The Plaintiffs concede that Cardiel can not testify to the exact reason why Laura S. ultimately signed Form I-826. [Pls.’ Resp., Doc. No. 123 at 27]. Nevertheless, Plaintiffs argue that Cardiel’s value as a witness to show coercion on the part of Agent Garza does not rest on her ability to read Laura S.’s mind. Cardiel was processed simultaneously with Laura S. and can, for the most part, testify to exchanges between Laura S. and the agents and verbal and physical expressions of Laura S.’s mindset.- Clearly,' Cardiel has sufficient personal , knowledge to testify about any events she witnessed at the CBP processing center and to the actions of Agent Garza (or any other agent) that she and Laura S. experienced jointly. The Defendants’ objection is overruled as to those events Cardiel personally witnessed.
iii.. Morales
Morales was apprehended by the police officer along with Laura S., Cardiel, and Alvarez. Before the police officer called Agent Garza, Morales testified that Laura S. was the only one that looked stressed and that Laura S. told the police officer not to call immigration because of the danger Sergio H. posed in , Mexico. [Morales Dep. 19:12-24]. Like Cardiel and Alvarez, Morales testified that Laura S. told Agent Garza that she feared being sent back to Mexico on account of Sergio H. and that she had a protective order against him. [Id. at 23:2-15]. According to Morales, Laura S. asked Agent Garza to let her go. [Id. at 22:17-19].
In the Weslaco processing center, Morales, though relatively far from Laura S., claimed that he could still hear what Laura S. was saying and could see her in plain sight. [Id. at 24:18 — 25, 25:1]. He testified that while she was being processed, Laura S. sounded frightened, cried, and looked like she was in anguish. [Id. at 28:3-12]. Morales testified that Laura S. was begging not to be deported and that she told Agent Garza and the unidentified CBP agent that she feared being killed. [Id. at 28:15-16]., Morales testified that an “anguished” Laura S, continued to beg for release all the way to the bridge. [See id. at 31:18-25, 32:1-3, 33:1-2].
The Defendants argue that because Morales did not recall Laura S. signing any form, the Court should discount Morales’ testimony about the events at the CBP processing' center. [Defs.’ Mot. for Summ. J., Doc. No. 118 at 33]. The fact that Morales, himself, did not remember Laura S. signing any documents does not serve to discount the entirety of his testimony — especially when the Court is weighing solely the issue of whether a fact question exists.
iv. The Agents’ Testimony
Agent Garza’s account of the events at the CBP processing unsurprisingly differs greatly from that of Cardiel, Alvarez, and Morales. Agent Garza testified that though he does not remember “exactly” how the group reacted when he picked them up, he did not think that they were too happy or too upset — more complacent. [Garza Dep. 86:6-9]. He does not recall Laura S. begging him not to send her back to Mexico, crying in the car, mentioning the protective order, or assigning him moral responsibility for her possible death, [Id. at 86:6-25, 87:1-5, 96:8-11]. According to Agent Garza, had Laura S. told him that she feared going back to Mexico, she would have seen an immigration judge. [See id. at 189:22-25, 190:3-4]. Agent Garza indicates that he had ample time to process Laura S. as he was assigned a shift from midnight to 8:00 AM and had two additional hours of “administratively uncontrollable overtime,” pushing his total shift until 10:00 AM. [Id. at 70:15-21, 104:18-105:10].
Agent Garcia, the supervisor on duty at the GBP center in Weslaco the morning Laura S. was processed, repeatedly corroborates Agent Garza’s testimony. According to Agent Garcia, an alien subject to voluntary return who expressed a fear of return would have their -1-826 form marked as such and would be issued a notice to appear to see an immigration judge. [Garcia Dep, 83:15-23, 87: 8-14, 88:3-6,16-25].
2. Did Laura S. Knowingly Select Removal on Form 1 — 826?
When considering whether Laura S. knowingly waived her right to a deportation hearing the. Court must consider: (1) the clarity of the written waiver agreement, (2) whether the party was represented by or consulted with an attorney, and (3) the party’s background and experience. Nose, 993 F.2d at 79. Courts “must indulge in every reasonable presumption against a waiver.” Id.
i. Clarity of Form 1-826
Form 1-826, clear and unambiguous by design, is a “relatively simple document;” See O’Hare v. Glob. Nat. Res., Inc., 898 F.2d 1015, 1016-17 (5th Cir. 1990) (upholding a claims release where an- employee had the experience and training to understand the “plain and unambiguous” release document). Laura S. was a native Spanish speaker., The I-826 form Laura S. was presented with was written in Spanish and clearly set out Laura S.’s rights and options. [See Defs.’ Ex, 2, Doc. No. 119-2 at 4-5]. A section entitled “Notice of Rights” listed the rights and options provided to Laura S. [Id.] It stated that Laura S. .had the right to appear before an immigration ‘judge -to determine if she could stay in the United States. [Id.] Form 1-826 gave Laura S. the right to contact an attorney or other legal representative regarding her rights in the United States. [Id.] The form also stated that the agency could provide a list of legal organizations upon request. [Id.] The form gave Laura S. the right to communicate with a consular, diplomatic officer, lawyer, or legal representative at any toe. [Id.] This factor clearly favors the Defendants’ position.
ii.t Whether Laura S. Was Represented by or Consulted with an Attorney
Laura S. was not represented by an attorney. Although the 1-826 form indicated that Laura S. would be provided a list of legal organizations upon request, there is no evidence that Laura S. asked to contact an attorney. Since Laura S. was processed before dawn,- there is little chance an attorney would have been immediately available to her had she requested one at the time. Of course, had she requested one, she would have been held in custody, at least until one arrived.. There is no evidence that Laura S. requested an attorney or that any party prevented Laura S. from obtaining an attorney. This factor-does not favor either side. Clearly, given the fact that this encounter occurred after 2:00 in the morning, an attorney was not immediately available. Nevertheless, it is equally clear that Laura- S. did not request one. .
. iii. Laura S.’s Background and Experience.
The morning in question was' not the first time that Laura S. had seen Form I-826. Laura S. was presented with Form I-826 in both 2002 and 2005, resulting in her repatriation to Mexico both times. [See Defs.’ Ex. 3, Doc. No. 119-3; Defs.’ Ex. 4, Doc. No. 119-4]. She chose the voluntary return option both times. [Id.] Cardiel testified that Laura S.’s intelligence was “very good,” and Cardiel’s testimony indicates that Laura S. knew that signing Form 1-826 would lead to her removal to Mexico, [See Cardiel Dep. 46:10-12], a detail that Plaintiffs readily admit. [Pis.’ Resp., Doc. No. 123 at 29]. There is no evidence that Laura S. could not read or understand Form 1-826, a form nearly identical to the ones she was presented with in 2002 and 2005. Furthermore, the evidence is undisputed that she had ample time to read and consider it, and that she knew the effect of the box she checked. This factor clearly favors the Defendants.
iv. Totality of the Circumstances
The Plaintiffs argue that even if Laura S. had signed a voluntary return form before, circumstances were different for Laura S. in 2009. Sergio H. allegedly told her that he would kill her if she returned to Mexico after her experience with voluntary return in 2002 and 2005. Thus, Plaintiffs contend that Laura S. had no experience with voicing her fears of returning, and accordingly, can not be said to have signed the waiver knowingly. One could likewise speculate and reach the opposite result if one assumed that Laura S., like Cardiel, wanted the quickest route to be reunited with her children. The undisputed facts do not support Plaintiffs’ speculation. Laura S. would not have needed to know the effect of voicing her fears beforehand — Form 1-826 plainly elucidates her right to see an immigration judge should Laura S. have believed that harm awaited her in Mexico.
The Plaintiffs also argue that Laura S. would need to understand that Defendants were incorrect in telling her, as Cardiel testified, that she must be removed to Mexico. [Cardiel Dep. 43:14-16] (Agent Garza and another agent told Car-diel and Laura S. that they “had to go to Mexico.”). The Plaintiffs point out that unlike the parties in Nose, where the plaintiff, a highly educated individual who consulted with counsel was found to have voluntarily waived her rights to an immigration hearing, Laura S. would have needed to actually understand that Defendants were incorrect in telling her that she must be removed to Mexico.
The entirety of Laura S.’s options were laid out clearly in Form 1-826, a document she could understand and one with which she was familiar. Testimony that Agent Garza and another agent told Laura S. and Cardiel that they “had to go to Mexico” does not rise to the level of misrepresentation that would indicate that the waiver was made unknowingly. Certainly, given the option she chose on Form 1-826, she knew she would have to go to Mexico. For example, if Agent Garza had told Laura S. that by signing Form 1-826 she could gain citizenship, the Court could conclude that Agent Garza misrepresented the options available to Laura S. on the form. See Ibarra-Flores, 439 F.3d at 620 (finding that an alien did not knowingly or voluntarily accept voluntary departure where the immigration officials told the alien that he could apply for residence, but only if he signed a document waiving his right to request any type of immigration relief).
There is no evidence that Agent Garza or any other agent affirmatively misrepresented Laura S.’s rights so as to muddle the rights spelled out on Form I-826. See Gutierrez v. Mukasey, 521 F.3d 1114, 1117 (9th Cir. 2008) (finding that an alien knowingly signed Form 1-826 as he alleged no misrepresentations by immigration officials nor any other circumstances suggesting an absence of consent); Reyes-Rojas v. Lynch, 644 Fed.Appx. 725, 725-26 (9th Cir. 2016) (where there was no evidence of misrepresentation by immigration officers, substantial evidence supported the Board of Immigration Appeals’ decision that the alien knowingly and voluntarily accepted voluntary departure).
Laura S. was of able mind and could read the options plainly listed on Form I-826 (options she was faced with in 2002 and 2005). There is nothing to suggest that Laura S. misunderstood the clear, one-page form provided to her. Cardiel testified that, unlike in her prior experience with voluntary return, she was not told she could see an immigration judge in 2009. [Cardiel Dep. 72:6-15]. The Plaintiffs argue that the alleged difference in disclosure shows that Cardiel was confused about her options when she signed Form I-826 in 2009 — the inference being that Laura S. could have similarly been confused. Cardiel, however, provides no relevant testimony to suggest that she could not understand the options presented to her on Form 1-826 the morning she was processed with Laura S. Furthermore, to impute Cardiel’s state of mind to Laura S. is pure speculation.
“[T]here can be little question” that had Cardiel and Laura S. “read [Form 1-826], they would have understood [their] options and understood that they carried lasting legal consequence.” Reyes-Sanchez v. Holder, 646 F.3d 493, 499 (7th Cir. 2011). Plaintiffs do not argue that Laura S. did not read the form. There is no evidence that supports this. Moreover, it is clear from Cardiel’s testimony that Laura S. understood the consequences of the option she chose even though she was not represented by counsel; Plaintiffs concede as much. See Silva-Blanco v. Holder, 568 Fed.Appx. 293, 294 (5th Cir. 2014) (even though an alien subject to removal submitted an affidavit asserting that she did not know what she was doing when she signed Form I-826, the “affidavit [was] not so compelling that no reasonable fact-finder could conclude that she accepted voluntary departure.”) (internal quotation marks omitted). Furthermore, all of the evidence supports the conclusion that Laura S. understood the effect of her choice regarding Form 1-826, even if she was upset about what would be the eventual result.
The Court finds that the totality of the circumstances indicates "that Laura S. understood the options available to her on the one-page Form 1-826 — a form nearly identical to the one she had seen in both 2002 and 2005. Thus, even when accounting for a presumption against any waiver, the Court finds that the Plaintiffs have not raised a genuine question .for. the factfin-der as to whether La