United States v. Reyes-Romero (327 F. Supp. 3d 855, 2018)

Mark R. Hornak, United States District Judge.

The Defendant Mario Nelson Reyes-Romero ("Defendant") was administratively removed from the United States in 2011, and he was discovered back in the United States in 2017 without permission from the necessary officials of the federal government, resulting in his indictment for one count of Reentry of Removed Alien, 8 U.S.C. § 1326. (Indictment, ECF No. 1.) Three motions are now pending in this criminal case before the Court.

First, the Defendant seeks dismissal of the Indictment, claiming that the Removal of the Defendant in 2011 was contrary to law. The Defendant's Motion to Dismiss Indictment, ECF No. 14, asserts that the Defendant fulfills all of the elements of the affirmative defense set out in § 1326(d) as a matter of law. The Court agrees, and for the reasons set forth at length in this Opinion, the Court grants the Defendant's Motion to Dismiss Indictment. In so ruling, the Court reaches no conclusion as to whether the Defendant can, should, or will now be removed from the United States in a manner consistent with federal law. But the Court does conclude that the process used to remove him in 2011 was contrary to law and that the Defendant has successfully challenged the 2011 Removal Order under § 1326(d), thus rendering it invalid.

Second, the Defendant's Motion for Bond, ECF No. 36, requests that the Defendant be released on bond subject to reasonable conditions. The Motion for Bond is moot in light of the Court's granting of the Defendant's Motion to Dismiss Indictment.

Third, the Government's Motion to Dismiss Indictment, ECF No. 46, requests that the Court dismiss this case with prejudice without reaching the merits of Defendant's Motion to Dismiss. For the reasons set out at length below, the Government's Motion to Dismiss Indictment, ECF No. 46, is denied.

I. Factual Background

According to the Government, the Defendant, a citizen of El Salvador, entered the United States unlawfully at some point prior to November 2008. (Gov't's Br. in Opp'n, ECF No. 17, at 3.) In 2009, he was convicted in New Jersey state court for the state law crime of second degree aggravated assault. (Id. ) In 2011, the Department of Homeland Security (DHS) commenced an administrative removal proceeding ("2011 Removal Proceeding") against the Defendant pursuant to 8 U.S.C. § 1228, which authorizes the expedited removal of aliens convicted of "aggravated felonies" as that term is defined under federal law. (Id. )

As part of that 2011 Removal Proceeding, the Defendant completed and signed two DHS forms: DHS Form I-826 and DHS Form I-851 (the "Forms"), which are described in detail below. A Final Administrative Removal Order was served on the Defendant on June 23, 2011. (App. to Br. in Supp. of Def.'s Mot. to Dismiss ("Def.'s App.") 21, ECF No. 16 ("2011 Removal Order").) The Defendant was deported and removed to El Salvador in August 2011. (Def.'s App. 11.) The Government alleges that the Defendant was discovered in the Western District of Pennsylvania on October 3, 2017, but he had allegedly not gone through any administrative or judicial channels to obtain lawful re-admittance to the United States. (ECF No. 17, at 5-6.)

On October 24, 2017, the Defendant was indicted in this District on one (1) count of Reentry of Removed Alien, 8 U.S.C. § 1326. (ECF No. 1.) The Defendant filed his Motion to Dismiss Indictment on November 17, 2017. (ECF No. 14.) The Court held hearings on January 3 and 4, 2018, and the Court authorized supplemental briefing. (ECF Nos. 23, 26, 27.) Due to the time it took for the Government to produce various immigration files, the deadlines for those supplemental briefs were extended considerably. (See ECF Nos. 28, 32, 34, 38, 51.) Meanwhile, on February 15, 2018, the Defendant filed his Motion for Bond, and on February 27, 2018, the Government filed its own Motion to Dismiss Indictment. (ECF Nos. 36, 46.) The Court held further hearings on March 1, 2, and 22, 2018. (ECF Nos. 53, 54, 73.) All supplemental briefs have been submitted, and all three Motions are ripe for decision.

II. Defendant's Motion to Dismiss

The Defendant brings his Motion to Dismiss asserting the affirmative defense to the charge of reentry of removed alien, as set out in 8 U.S.C. § 1326(d). That provision provides an opportunity for the Defendant to collaterally attack the underlying removal order (here, the 2011 Removal Order), which, if successful, defeats a necessary element of the reentry of removed alien offense and requires dismissal of the Indictment. The Defendant argues that his removal from the United States pursuant to the 2011 Removal Order cannot function as a basis for a § 1326 prosecution now because the 2011 Removal Order was premised on illegitimate and ineffective waivers of his rights contained in the two involved Forms (I-826 and I-851). (Def.'s Br. in Supp., ECF No. 15.)

A. Legal Framework

"The Fifth Amendment guarantees aliens due process in all phases of deportation proceedings." Bonilla v. Sessions , 891 F.3d 87, 91 (3d Cir. 2018). "Fundamental precepts of due process provide an alien subject to illegal re-entry prosecution under 8 U.S.C. § 1326 with the opportunity to challenge the underlying removal order under certain circumstances." United States v. Charleswell , 456 F.3d 347, 351 (3d Cir. 2006). Where the underlying removal proceeding "is so procedurally flawed that it 'effectively eliminated the right of the alien to obtain judicial review,' we may invalidate the criminal charges stemming therefrom." Id. at 352 (quoting United States v. Mendoza-Lopez , 481 U.S. 828, 839, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) ). A defendant charged with reentry of removed alien under § 1326 may collaterally attack the underlying removal order if the defendant establishes that:

(1) the defendant exhausted any administrative remedies that may have been available;

(2) the deportation proceedings from which the underlying removal order was issued improperly deprived the alien of the opportunity to obtain judicial review; and

(3) the entry of the removal order was "fundamentally unfair."

8 U.S.C. § 1326(d) ; Charleswell , 456 F.3d at 351.

If the collateral attack on the underlying removal order is premised on an alleged invalid waiver of rights associated with a deportation proceeding, the Government has the initial burden to produce the written waiver signed by the defendant. Richardson v. United States , 558 F.3d 216, 222 (3d Cir. 2009). The burden then shifts to the Defendant to show by a preponderance of the evidence that the waiver is invalid. Id. at 219, 222 n.5. A waiver is invalid if it is not entered into voluntarily and intelligently. Id. at 219-20. If the waiver is found to be invalid, the Defendant is excused from showing an exhaustion of administrative remedies. Id. at 220 (quoting United States v. Muro-Inclan , 249 F.3d 1180, 1183 (9th Cir. 2001), for the conclusion that § 1326(d)'s exhaustion requirement "cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process").

Along the same lines, an invalid waiver of the opportunity for judicial review constitutes a deprivation of judicial review, and, in such a case, the Defendant will also be deemed to meet the second element. Mendoza-Lopez , 481 U.S. at 840, 107 S.Ct. 2148 (when a waiver of rights related to one's right to judicial review is not entered into intelligently, there is a deprivation of the opportunity for judicial review).

In order to meet the third element, a showing that the underlying removal proceeding was "fundamentally unfair," the Defendant must establish both (a) that some fundamental error occurred and (b) that as a result of that fundamental error, the defendant suffered prejudice. A fundamental error may take the form of a proceeding that "deprives an alien of some substantive liberty or property right such that due process is violated," Charleswell , 456 F.3d at 359, or "where an agency has violated procedural protections such that the proceeding is rendered fundamentally unfair." Id. at 360. Resulting prejudice requires the Defendant to establish (by a preponderance of the evidence) a reasonable likelihood that the result would have been different if the fundamental error in the removal proceeding had not occurred. Id. at 361. Our Court of Appeals has noted that the answer to whether there was prejudice requires the district court to determine whether there is a "reasonable probability" that the Defendant "would have obtained relief had he not been denied the opportunity for direct judicial review of his [removal] order." Id. at 362. However, the Charleswell Court also noted that "some procedural defects may be so central or core to a proceeding's legitimacy, that to require an alien to establish even a 'reasonable likelihood' that he would have obtained a different result establishes too high a burden." Id. at 362 n.17.

B. Discussion

Whether the purported waivers within the Forms are valid impacts this Court's analysis of the first two § 1326(d) elements. Thus, the Court begins its discussion with an analysis of the purported waivers, initially describing both what the Forms themselves show and what the DHS Officers who completed the Forms with the Defendant testified to about them. The Court finds and concludes that the purported waivers in the Forms are invalid both facially and as explained by the Government's witnesses. With this, the Court concludes that the first two elements of the § 1326(d) affirmative defense have been met. Then, the Court analyzes the third element, addressing both fundamental error and prejudice. The Court finds and concludes that the entry of the 2011 Removal Order was the result of "fundamental error" and caused actual prejudice to the Defendant. And beyond that, due to the egregious nature of the fundamental error, the Court also finds and concludes that the 2011 Removal Order was inherently and presumptively prejudicial to the Defendant.

Thus, the Court concludes that the Defendant has met his burden to show that all of the elements of his § 1326(d) affirmative defense are met, and the Defendant's Motion to Dismiss the Indictment is granted.

1. The Purported Waivers

Third Circuit law as stated in Richardson and Supreme Court precedent as discussed in Mendoza-Lopez say that an alien validly waives his rights associated with a removal proceeding only if he does so voluntarily and intelligently. The "waivers" at issue here are located within the two Forms that were presented to the Defendant during his 2011 Removal Proceeding, at the same time, 9:00 AM on June 23, 2011. "In cases where there is a written waiver, this issue frequently comes down to an issue of credibility." United States v. Meza-Magallon , 2017 U.S. Dist. LEXIS 190970, at *14 (E.D. Pa. 2017). Credibility certainly plays a large role in this case, but what the Forms show on their face is itself rather astounding. The Court first summarizes what the Forms themselves demonstrate. Then, the Court provides an account of what the Government's witnesses testified to with respect to the Forms. Finally, the Court makes its findings and conclusions that the Forms do not evidence valid waivers.

i. Form I-826

The first Form at issue here, the I-826, is titled, "Notice of Rights and Request for Disposition." (Def.'s App. 106; Ex. H, ECF No. 63-1 (color copy).) The color copy is attached to this Opinion as Exhibit A. The top of the first page of the I-826 reads:

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.

(Id. (emphasis added).) After the remainder of its "Notice of Rights" section, there is a section entitled, "Request for Disposition." There are three options from which the subject (here, the Defendant) may select and initial:

-• I request a hearing before the Immigration Court to determine whether or not I may remain in the United States.

-• I believe I face harm if I return to my country. My case will be referred to the Immigration Court for a hearing.

-• I admit that I am in the United States illegally, and I believe that I do not face harm if I return to my country. I give up my right to a hearing before the Immigration Court. I wish to return to my country as soon as arrangements can be made to effect my departure. I understand that I may be held in detention until my departure.

(Id. ) On the Defendant's completed I-826, two boxes are marked with an "X": the first box, indicating a request for a hearing, and the third box, waiving his right to a hearing. None of the boxes are initialed. What is more striking than those plainly contradictory choices is the manner in which these boxes were selected. The first selected option, requesting a hearing, is marked with a large bold X in black ink, appearing as if the X was reinforced with an additional black X over it. The other selected option, waiving the "right to a hearing," contains a small thin black X as well as a light blue slash (or what may better be described as half of an X). The Defendant's signature under the selections appears in black ink. The signature by DHS Deportation Officer Trushant Darji in the third and final section of the I-826, entitled "Certification of Service," appears in light blue ink identical in appearance to the marking on the selected option of "no hearing." Under "Date and Time of Service," markings indicating June 23, 2011, and 9:00 also appear in that same light blue ink. (Id. ) Notably, the I-826 reflects that the Defendant had the I-826 read to him in Spanish, but also that the Defendant read it himself in English, a language he does not speak. (ECF No. 16, at 106.)

ii. Form I-851

The second Form at issue here, the I-851, is a two-page document titled, "Notice of Intent to Issue a Final Administrative Removal Order." (Def.'s App. 22-23; Ex. J, ECF No. 63-3 (color copy).) It is attached to this Opinion as Exhibit B. The first page contains information about the Defendant with a charge indicating that the Defendant is "deportable under section 237(a)(2)(A)(iii) of the Act, 8 U.S.C. 1227(a)(2)(A)(iii), as amended, because you have been convicted of an aggravated felony as defined in section 101(a)(43)(F) of the Act, 8 U.S.C. 1101(a)(43)(F)." (Def.'s App. 22.) The Charge informs the individual that DHS is serving such notice "without a hearing before an Immigration Judge." (Id. )

Below that is a section called "Your Rights and Responsibilities," and it indicates that the alien (here, the Defendant) may request withholding of removal under 8 U.S.C. § 1231(b)(3) if he fears persecution in any specific country and that the Defendant may rebut the charges stated on the Form. At the bottom of the first page of the I-851, there is a signature line for "Signature and Title of Issuing Officer." That line contains a signature by the "Issuing Officer" and bears a date and time notation of June 23, 2011, at 10:00. (Id. )

The first section at the top of the second page of the I-851 is the "Certificate of Service." (Def.'s App. 23.) Below the signature of the serving officer indicating the Notice of Intent was served (Officer Jose Alicea) is a checked box that states "I explained and/or served this Notice of Intent to the alien in the Spanish language." The name of the interpreter, also Jose Alicea, is printed, followed by his signature. Immediately below that line is an acknowledgement of receipt with the Defendant's signature and a date and time notation of June 23, 2011, 9:20 (presumably, A.M.). (Id. ) Thus, the plain reading of this Form is that it was signed by the Issuing Officer and "issued" forty (40) minutes after receipt was purportedly acknowledged by the Defendant at 9:20 AM that day.

The middle section of the second page of the I-851 provides options for contesting removal or seeking withholding of removal, and it is left blank. (Id. )

The final section of the second page of the I-851 has three boxes also checked. The first corresponds with the selection, "I do not wish to contest and/or to request withholding of removal." The second checked box corresponds with the selection admitting the allegations and charges contained in the form, acknowledging ineligibility for any form of relief from removal, and expressing a wish to be removed to El Salvador. The third checked box corresponds with the selection "I understand that I have the right to remain in the United States for 14 calendar days in order to apply for judicial review. I do not wish this opportunity. I waive this right." (Id. ) The Defendant then signed the corresponding signature block, with a date and time of June 23, 2011, 9:00 written in that section. It is "witnessed" by the interpreter and DHS serving officer, Jose Alicea, with the very same date and time notation. (Id. )

Thus, based on the time notations on the face of the I-851 alone, the Defendant supposedly waived his rights to contest removal or apply for judicial review twenty (20) minutes before he acknowledged receipt of the Form I-851 and an hour before it was ever "issued." (Def.'s App. 22-23.) When read in conjunction with the I-826, the Defendant supposedly waived all his rights (including to judicial review) on the I-851 at the exact moment that he was served with the I-826, where he had affirmatively indicated his request for a hearing.

Importantly, a check mark was used by Officer Alicea when he signed the "Certificate of Service" section at the top of the I-851's second page, and check marks also appear in the "I do not wish to contest" portion at the bottom of that page, even though all of the markings on the boxes of the I-826, those next to Defendant's signature and those next to Officer Darji's signature, were "X" marks. Thus, while different notations were made in the selection boxes as between the I-826 and the I-851, the markings in each case attributed to the Defendant switched from Form to Form yet matched the markings attributed to the Officers on each such Form.

iii. The Government Witnesses' Testimony

In an effort to explain the Forms and place them into the context of the 2011 Removal Proceeding, the Government called two witnesses, both of whom were the DHS Officers whose names and signatures appear on the Forms: Officers Trushant Darji and Jose Alicea. Based on the Court's consideration of all the evidence before it, its own examination of the witnesses, and its personal observations relative to that testimony in open Court, the Court finds and concludes that this testimony was, at key points, internally inconsistent, contradictory in comparison with the content of the Forms, and simply nonsensical. The Court stated just that at several points during the various hearings in this case, and the Government has not contradicted those tentative conclusions. (See, e.g. , ECF No. 31, 51:9-54:20; ECF No. 57, 11:1-11 & 47:4-48:1; ECF No. 58, 14:17-17:1; ECF No. 77, 22:18-26:5.) The Court also made tentative findings during the hearings that certain material portions of the Officers' testimony were false. To explain these conclusions, the Court recounts the following excerpts from the evidentiary hearings.

Officer Trushant Darji testified that Form I-826 is served in every removal case to ensure that the presiding DHS officer has an understanding of the alien's intentions and to provide the alien with notice of certain rights. (Tr. of Proceedings, ECF No. 30, 25:20-30:23.) He testified that DHS officers would advise the alien what the Form was, read everything on the Form to the alien, and explain all of the options for the alien to select from. If the alien selects multiple options as to requesting a hearing or asking for no hearing, a DHS officer would "absolutely" attempt to clarify the alien's desires before other forms were filled out, including by having the alien initial his "real" choice. (Id. at 29:10-14.) It is plain that this "standard" process was not followed here, and that the Officers elected to go forward with the notation that the Defendant did not want a hearing, even though they offered no basis to exclude the equally chosen and marked choice that he did seek a hearing. (ECF No. 30, 61:11-62:14 & 72:14-18.) Officer Darji then testified that both Forms would be served together at the same time upon the detainee. (ECF No. 30, 32:12-15.) He later changed his testimony to say that he normally serves the "rights form" (the I-826) first. (ECF No. 30, 33:15-17.) When confronted with the time notations on the Defendant's I-826 and his I-851, Officer Darji acknowledged that it appeared as if all the waivers (and the alleged explanations that would have come along with providing those Forms) happened simultaneously, that is, literally at the same moment in time. (ECF No. 30, 62:2-11.)

Discerning the purpose of the first-page "issuing" signature on the I-851, or where and exactly when the I-851 indicates it was authorized to be served on the detainee, was obfuscated by Officer Darji's convoluted testimony. He first testified that in his general practice (because he had no specific recollection of this particular removal proceeding), charging documents in a removal proceeding would be "signed off" by the DHS officer's supervisor, then signed off by agency attorneys and more supervisors, and then and only then the documents would be served upon the detainee. (ECF No. 30, 20:17-23 & 22:24-23:3.) However, in an attempt to explain why this I-851 shows service (and waivers of rights) signatures occurring before the issuing signature of a DHS supervisor, Officer Darji testified that it was not unusual to complete the "issuing signature" on the face of the I-851 after service on the alien because the issuing supervisor "wants to make sure we serve the documents on [the detainee, and] there are no problems with the notice of intent to issue the final order," implying that the "issuing" by a DHS supervising officer actually occurs after the Defendant signed an "un-issued" charging form. (ECF No. 30, 38:2-4.) Immediately thereafter, Officer Darji instead stated that the issuing signature "authorize[s] you to approach the alien with this document." (ECF No. 30, 38:5-7.)

But later, perhaps recognizing that such "issuing" authorization was signed at least forty (40) minutes after presentation of the I-851 to the Defendant, Officer Darji changed his testimony again to say that the "issuing signature's" purpose was to show "that the document was served on the alien," even though the I-851 itself says no such thing on its first page and there is a separate section for certification of service on its second page. (ECF No. 30, 40:6-9.) After a short recess and on re-direct, Officer Darji reversed course again and said that it actually was standard practice to complete the "issuing signature" on the first page after the document had been served. (ECF No. 30, 64:6-16.) When the Court asked the Officer why he initially gave opposite answers, Officer Darji responded that "[t]hinking about it after I answered the first time, the second answer was more appropriate." (ECF No. 30, 73:12-15.) This response required the Court to follow-up with, "[w]hich answer was true?" To which the Officer responded that the Form would be "signed by the supervisor after we serve them." (Id. at 73:19-21.) In terms of this Officer's explanation of the I-851 in this case, the Court finds and concludes that his testimony was at odds with the text and facially stated purposes of the various provisions of the I-851.

Based on the Court's consideration of all of the testimony presented and its observations of his demeanor on the witness stand, his testimony in those regards was false, likely given in an effort to explain away the reality that the Defendant was confronted with and induced to sign the I-851 before it was even "issued" or, as demonstrated below, fully explained to him.

Officer Darji testified that an I-851 would be presented to the detainee and an Officer would go through the first page, top to bottom, and then the second page, top to bottom, explaining everything. (ECF No. 30, 33:23-35:5.) The certificate of service would be completed at the top of the second page, and then the alien would check off what option he wanted, e.g., to contest or not contest removal. (Id. ) Despite that standard operating procedure, Officer Darji immediately followed that explanation with testimony that it was not unusual for the detainee to waive his rights before the certificate of service was signed "[b]ecause basically the form was signed by the alien down below after he is explained everything, then the administrative order was actually served and acknowledged and explained to him by the native speaker ...." (ECF No. 30, 36:16-23 (emphasis added).) When asked what occurred in the time after the detainee actually waived his rights and before the certificate of service is completed, Officer Darji testified that "we would make sure the alien understood everything." (ECF No. 30, 37:3-5.) This, of course, would facially obviate any waiver, as it would have been "made" before the required explanation and confirmation of understanding.

The Government's next witness, Officer Jose Alicea, testified that when serving multiple forms, the Officer would serve one Form and then go on to the next Form upon completing the service of the first one. When the Court asked why an Officer would list the same time on the Forms for multiple serial events, Officer Alicea responded that the respective time notations are based on whatever the clock in the room read when it was time to sign. (ECF No. 30, 88:24-89:17.)

When Officer Alicea was asked why his signature on the I-851 was time-noted twenty (20) minutes after the Defendant signed the waiver, he testified that the time gap "would have been about the time my explanation was completed." (ECF No. 30, 91:5-8.) In response to a question from the prosecution, Officer Alicea confirmed that those twenty (20) minutes after the purported waiving of rights were used to "read the document in Spanish to the alien." (ECF No. 30, 91:9-12.) This of course means that the Defendant supposedly waived his rights by his signature before they were read to him in Spanish. Immediately thereafter, perhaps sensing the impact of his prior (and then re-confirmed) contrary testimony, Officer Alicea switched gears and testified that he would have read the document to the alien in Spanish before the alien made any selection on the I-851. (ECF No. 30, 91:13-15.) The Court concludes that given the times on the Forms, the balance of their content, the overall tenor and content of Officer Alicea's testimony, and his demeanor on the witness stand as observed by the Court, this later statement was false, likely presented by Officer Alicea in an effort to explain away his prior testimony.

Officer Alicea also testified on direct examination that administrative removal proceedings in New Jersey were something that he was commonly involved in (ECF No. 30, 82:7-11), and he did not have a specific recollection of serving the specific Forms at issue in this case. (ECF No. 30, 85:17-19.) Then, in that same direct examination, Officer Alicea also testified that administrative Removal Proceedings were rare in New Jersey, and this specific Removal Proceeding with the Defendant was the only administrative removal proceeding that he could recall being involved with at the New Jersey office. (ECF No. 30, 91:20-92:17.) When the Court asked him about this contradiction, Officer Alicea testified the Defendant's I-851 was the only I-851 he could recall doing. (ECF No. 30, 92:18-24.)

Now that the Court has summarized the content of the Forms and the testimony of the DHS Officers who signed and served those Forms on the Defendant, the Court analyzes the effect of these Forms and that testimony on the issue of waiver.

iv. The Waivers Are Invalid

The Court concludes that the waivers in the Forms, both in the I-826 and I-851, are facially invalid. The Government has not met its initial burden to produce a facially valid written waiver signed by the Defendant. This I-826 is internally and inherently contradictory on its face. It is impossible to discern whether the Defendant actually waived his rights (including to a hearing), because the Defendant's signature corresponds to a selection both waiving and not waiving his rights to a hearing, a hearing the I-826 affirmatively said that he could request. Therefore, the Court cannot conclude that the I-826 presented by the Government is actually what the Government asserts it to be: a waiver.

At one point, the Government posited that the I-826 was actually irrelevant to the case and should be disregarded because the I-851 was the controlling document:

THE COURT: You are saying the agents of the United States Department of Homeland Security required this defendant and everyone else to go over and to sign a legally pointless document, the 826?

MR. HALLOWELL: That's my understanding of [the Officers'] testimony, Your Honor.

(Tr. of Proceedings, ECF No. 31, 17-22.) Even if that is the actual relationship between the I-851 and the I-826, the Court has to take the case as it is, and the Defendant was given both Forms at the same time, one of which told him he had a right to a hearing. This reason alone shows that any sense of what the Defendant's hearing rights and other rights actually were had become practically indecipherable, and waivers stemming from such transaction could not have been entered into intelligently. As our Court of Appeals acknowledged in Charleswell :

The presence of an affirmative statement concerning an avenue of relief [ ] immediately followed by a negative command concerning what the alien may not do, creates the impression that "these are the options.". Absent any affirmative notice to the contrary, and combined with the velocity of the [immigration] process, it is simply unrealistic to expect an alien to recognize, understand and pursue his statutory right [under applicable laws] to direct judicial review in the appropriate court of appeals.

Charleswell , 456 F.3d at 357.

The I-851 also suffers from facial defects preventing it from constituting an actual written waiver. The Defendant signed the "waiver" section before it was entirely explained to him in his native language, he signed the waiver section before it was served on him, and it was served on him before it was issued. In short, he supposedly signed away his rights before he was charged and before those rights were read to him in Spanish. The waivers are facially invalid.

But there is more. Even if the Government had met its burden by merely producing a piece of paper purporting to be a waiver and containing the Defendant's signature, the Defendant has met his burden to show by a preponderance of the evidence that the waivers are invalid, because it is plain that the waivers were not entered into voluntarily or intelligently. Viewed independently, both Forms facially show either an unintelligent or an involuntary waiver of rights, or in the case of the wholly contradictory statements on the I-826 as to requesting a hearing, no waiver at all. When the Forms themselves are considered in conjunction with the testimony of the DHS Officers, the Court finds and concludes that the option giving up the right to a hearing on the I-826, given that this "selection" was partially made with the same ink color that the DHS Officer used to sign the form, was not made voluntarily or likely even made by the Defendant. The fact that both options on the I-826 were selected demonstrates that the Defendant did not intelligently (or actually) waive any rights that were described to him through the I-826. The order in which the sections of the I-851 were completed and the manner in which those sections were purportedly completed (based on the portions of testimony that the Court believed to be credible) demonstrates that any waivers in the I-851 were made unintelligently, as the Defendant purportedly waived his rights before the I-851 was fully explained to him or served on him.

These conclusions are further corroborated when the time notations on the Forms are read in conjunction with one another, showing the impossibility that the Forms were properly served, explained and translated, and then completed in accordance with all of the time notations. Finally, the very nature of the contradictory explanation of rights on the separate Forms supports the determination that the waivers were not entered into voluntarily and intelligently. Mendoza-Lopez , 481 U.S. at 840, 107 S.Ct. 2148 ; Charleswell , 456 F.3d at 357.

These two Forms are shams, and the result of the involved Officers electing to run roughshod over not only what they testified were the standard and required DHS procedures, but also over any semblance of due process. To be sure, these assessments are blunt and direct, but in the Court's estimation are compelled by the record. The Forms, and the 2011 Removal reliant on them, are invalid and the Officers' testimony proves it.

2. Exhaustion

The Defendant is excused from showing that he exhausted his administrative remedies in light of the invalid waivers. Richardson , 558 F.3d at 220 (quoting Muro-Inclan , 249 F.3d at 1183, for the conclusion that § 1326(d)'s exhaustion requirement "cannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process"); see also United States v. Sosa , 387 F.3d 131, 136 (2d Cir. 2004) ("[T]he exhaustion requirement must be excused where an alien's failure to exhaust results from an invalid waiver of the right to an administrative appeal."). Accordingly, the first Charleswell element ( § 1326(d)(1) ) is satisfied.

3. No Opportunity for Judicial Review

By his establishing that the waivers for judicial review were invalid, the Defendant has shown that he has been deprived of judicial review. Mendoza-Lopez , 481 U.S. at 840, 107 S.Ct. 2148 ("Because the waivers of their rights to appeal were not considered or intelligent, respondents were deprived of judicial review of their deportation proceeding. The Government may not, therefore, rely on those orders as reliable proof of an element of a criminal offense."). The second Charleswell element ( § 1326(d)(2) ) is satisfied.

4. Fundamental Unfairness

Even though Defendant has met the first two elements, to prevail on his Motion to Dismiss, the Defendant must also show that the underlying removal proceeding was "fundamentally unfair." This last element has two sub-parts. First, the Defendant must establish that some fundamental error occurred. Second, the Defendant must show that as a result of that fundamental error he suffered prejudice. To show prejudice, the Defendant must show based on a preponderance of the evidence that there is a "reasonable probability" that the Defendant "would have obtained relief had he not been denied the opportunity for direct judicial review of his [removal] order." Charleswell , 456 F.3d at 362. The Defendant is able to meet both such prongs and therefore satisfies the third element.

i. Fundamental Error Occurred

As set out above, the Forms that were intended to lay out the Defendant's rights and his elections regarding their exercise were completed in a manner that deprived the Defendant of any meaningful due process.

First, based on the I-826, at best, the Defendant simultaneously made two contradictory choices as to a request for a hearing and the DHS Officers failed to take any measure to properly address that contradiction, to clarify the Defendant's intentions by asking him to complete a new Form (or initial his selection on the existing Form), or to provide the Defendant with the hearing he had requested (and that the I-826 informed him that he had a right to). This despite the Officers' own testimony that when faced with such inherently contradictory choices, the standard and required procedure was to stop and definitely and definitively confirm the alien's true choice. (Tr. of Proceedings, ECF No. 30, 29:5-21.) At worst, a DHS Officer forged the Defendant's selection on the Defendant's I-826 in an effort to obstruct any rights to a hearing that the I-826 itself purported to offer.

Second, based on the I-851, the Defendant was handed an un-issued Notice of Intent where he was asked to waive further rights to contest removal or to request withholding of removal, twenty (20)

minutes before the I-851 says it was received by and/or explained to the Defendant.

Third, all the waivers on both Forms supposedly occurred at the exact same minute, and the Officers testified (and the documents support) that the supposed waivers in reality actually occurred before the Forms were explained to the Defendant.

In an effort to confirm (or not) that facial reading of the Forms, the Court asked DHS Officer Darji the following while Officer Darji testified under oath:

THE COURT: So within a few minutes somebody in your position would tell somebody that they have the right to a hearing. That person would have both requested a hearing and said they don't want a hearing. And then they would be told they don't get a hearing. Is that your testimony, sir?

DHS OFFICER DARJI: This is a generic form, yes.

THE COURT: Okay. But in the circumstance where it is a form 851 that is going to be used, in this specific circumstance, am I reading these forms inaccurately-or actually am I reading them accurately that within moments of 9 o'clock in the morning on June 23rd, 2011, several things had occurred pretty much all at once. This defendant was told he had a right to request a hearing. He requested a hearing. He said he didn't want a hearing. And he was told he couldn't have a hearing. Am I reading those forms correctly, sir?

DHS OFFICER DARJI: Yes.

THE COURT: Does that make any sense at all to you, sir?

DHS OFFICER DARJI: No, Your Honor.

(Tr. of Proceedings, ECF No. 30, 61:21-62:14 (emphasis added).)

The Court concludes that the Defendant has shown by a preponderance of the evidence that DHS violated required and material procedural protections and due process regarding the removal process such that the 2011 Removal Proceeding was rendered fundamentally unfair. See Charleswell , 456 F.3d at 360. Not only was the Defendant deprived an opportunity for review by an immigration judge ("IJ") based on the I-826, likely because the I-826 was manipulated by the DHS Officers, but he also was not given sufficient opportunity to understand or review his rights (including to judicial review) on the I-851 before signing them away.

"No society is free where government makes one person's liberty depend upon the arbitrary will of another." Hahn v. Burke , 430 F.2d 100, 105 (7th Cir. 1970) (quoting Shaughnessy v. United States ex rel. Mezei , 345 U.S. 206, 217, 73 S.Ct. 625, 97 L.Ed. 956 (1953) (Black, J., dissenting) ). In effectuating the administrative removal of the Defendant in 2011, the involved DHS Officers acted with fundamental disregard of their obligations under federal law and the Due Process Clause, and that Removal process was contrary to law.

ii. Fundamental Error Caused Prejudice to the Defendant

The second prong of the third element requires the Defendant to show prejudice. This Court must determine whether there is a reasonable likelihood that the Defendant would have obtained relief had he not suffered from the fundamental errors identified above. Charleswell , 456 F.3d at 362. In extreme cases, where the procedural defects are "so central or core to a proceeding's legitimacy," the reasonable likelihood standard becomes too high a burden. Id. at 362 n.17. In such an extreme case, prejudice may be presumed. Id. (citing United States v. Luna , 436 F.3d 312, 321 (1st Cir. 2006) ).

The Defendant argues that had the 2011 Removal Proceeding been conducted properly, and his request for a hearing so offered and so selected on the I-826 been honored, the Defendant could have then asserted a claim for asylum, withholding of removal, or Convention Against Torture (CAT) protection, and there is a reasonable likelihood that at least one of those claims would have been successful. The Government argues that the Defendant suffered no prejudice because he was not eligible for asylum or withholding of removal and he could not have asserted a successful CAT protection claim in 2011; therefore, the Defendant would have been deported regardless of any error with the Forms or the 2011 Removal Process.

"[R]esolution of the prejudice issue in the § 1326(d)(3) context is somewhat akin to a trial within a trial...." Charleswell , 456 F.3d at 362 (internal quotations omitted). After placing itself in the shoes of an IJ around the time of the 2011 Removal Proceeding, the Court concludes that the Defendant had a reasonable likelihood of success on a claim for asylum, a claim for CAT protection, and a claim for withholding pursuant to § 1231(b)(3)(A) had his 2011 Removal Proceeding been conducted without fundamental error. However, beyond that, the Court also concludes that the flaws in the 2011 Removal Proceeding were so central to any notion of a legitimate removal proceeding that prejudice can and must be presumed in this case. Therefore, the Defendant satisfies the prejudice prong of the third element.

a. Asylum

First, the Government argues that even if the Forms had been executed properly, the Defendant would not have had the opportunity to seek asylum because he is an "aggravated felon" as a result of his New Jersey state conviction for aggravated assault. This status is important, asserts the Government, because aggravated felon status has serious implications in removal proceedings: in the Defendant's case, not only did his aggravated felon status enable DHS to initiate expedited administrative removal proceedings against him, his aggravated felon status also made him per se ineligible for asylum. Thus, argues the Government, the Defendant's expedited deportation was unavoidable. The Defendant argues that if he had been properly informed of his rights, he would have challenged his aggravated felon status, likely been successful, and could have made a likely successful claim for asylum.

1. The Defendant was eligible for asylum because he was not an aggravated felon.

The Government is correct that aggravated felons are ineligible for asylum, so whether the Defendant could have had even a possibility of gaining asylum during his 2011 Removal Proceeding depends on whether the Defendant was properly charged by DHS as an aggravated felon.

In the immigration context, an "aggravated felony" includes any "crime of violence [defined in 18 U.S.C. § 16 but excluding purely political offenses] for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F). The Defendant's term of imprisonment in New Jersey exceeded one year. A "crime of violence," 18 U.S.C. § 16, has two alternative definitions:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Id. Thus, the Court must determine whether the Defendant's New Jersey aggravated assault conviction qualifies as a "crime of violence" under either prong. If it does, the Defendant is (and was) an aggravated felon for immigration purposes and could not have successfully claimed asylum in 2011. If it is reasonably likely that the Defendant could have successfully challenged his conviction being labeled as a "crime of violence," then he would have been eligible to present an asylum claim, as he would not have been labeled an aggravated felon.

i. Section 16(a)

Although courts typically employ the categorical approach to determine whether a state offense meets a federal definition, Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), if the state offense lists elements in the alternative (e.g., acting knowingly or recklessly) and only some of those alternatives fit the federal definition, the court must apply the "modified categorical approach." Johnson , 596 Fed.Appx. at 120. Both parties agree that the aggravated assault offense lists elements in the alternative, so the Court must utilize the modified categorical approach when comparing N.J. Stat. Ann. § 2C:12-1(b)(1) (2009) to the definitions in 18 U.S.C. § 16(a) and (b).

Under this modified categorical approach, the Court must "consult a limited class of documents ... to determine which alternative formed the basis of the defendant's prior conviction" and then determine if that basis meets the definition of a crime of violence. Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). A court applying the modified categorical approach determines the basis of the conviction based on "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard v. United States , 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Here is what the Court knows from the Shepard materials in this case. First, the statute at issue reads: "A person is guilty of aggravated assault if he: (1) Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." N.J. Stat. Ann. § 2C:12-1(b)(1) (emphasis added). The New Jersey indictment charged that the Defendant "purposely did attempt to cause serious bodily injury." (Def.'s App. 114, "State Indictment.") The New Jersey Judgment of Conviction and Order for Commitment does not indicate which alternative scienter element served as the basis for conviction. (Def.'s App. 112.) The Defendant pled guilty, and a video and audio recording of his plea colloquy was submitted into the record along with a transcript of the recording. (Def.'s Ex. Q; 2d Suppl. App. to Def.'s Reply to Gov't's Suppl. Resp. ("Def.'s 2d Suppl. App.") 9-11, ECF No. 82.) With the aid of an interpreter, the Defendant answered the following questions during his state court plea colloquy:

DEFENSE ATTORNEY: It's an aggravated assault.

THE COURT: Yeah, but did he attempt-did he attempt to create serious bodily injury? Significant bodily injury, right?

PROSECUTOR # 2: Yeah, serious.

THE COURT: Serious bodily-

(There was a discussion among counsel and interpreter.)

INTERPRETER: I'm sorry, maybe I interpreted incorrectly the question. I apologize. I apologize. The intent-

THE COURT: Okay. Did you intend to commit serious bodily injury when you stabbed the individual?

INTERPRETER [on behalf of the Defendant]: No.

PROSECUTOR # 1: But you knew about using a knife to stab somebody in a fight, you could have caused serious bodily injury?

INTERPRETER [on behalf of the Defendant]: Yes.

(Def.'s Ex. Q; Def.'s 2d Suppl. App. 9-11.)

While it is clear from the State Indictment that New Jersey charged the Defendant with an attempt to cause serious bodily injury, the plea colloquy shows that the Defendant did not admit to intending to commit serious bodily injury. After consulting the Shepard documents, the Court concludes that the Defendant admitted to recklessly causing serious bodily injury under circumstances manifesting extreme indifference to the value of human life, and that admission of recklessness was the basis for his conviction. To be clear, this is not simply a conclusion that it would be reasonably likely that an IJ would reach this conclusion; it is a conclusion that as a matter of law, the Defendant pled to a reckless level of scienter.

New Jersey defines "recklessly" as:

consciously disregard[ing] a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

N.J. Stat. § 2C:2-2(b)(3). The Defendant did not plead to the higher level of culpability, which is to act "knowingly," because "[a] person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result." N.J. Stat. § 2C:2-2(b)(2). The nature of the admitted statement, "you knew about using a knife to stab somebody in a fight you could have caused serious bodily injury," is insufficient to establish that the Defendant was aware that it was practically certain that his conduct would cause serious bodily injury. (Def.'s 2d Suppl. App. 11 (emphasis added).)

Neither the state trial judge nor the state prosecutor followed up with more specific questions in the colloquy to determine if the level of culpability rose to the level of "knowingly," and there is no evidence in the record that the trial judge made any factual findings as to which level of culpability the Defendant was guilty of. Without more, the Court is left with the admission in the colloquy, which only establishes a recklessness level of culpability.

The question now becomes whether reckless aggravated assault is the type of offense captured by § 16(a). If it is, then the Defendant committed a crime of violence, as defined by 18 U.S.C. § 16(a), and the offense qualified as an aggravated felony under immigration law in 2011, as defined in 8 U.S.C. § 1101(a)(43)(F). If it is not, the Defendant did not commit a crime of violence and would not have been an aggravated felon in 2011.

Contrary to the Government's assertion, the Supreme Court has specifically left unresolved the issue of whether reckless assault crimes qualify as a crime of violence under § 16. Voisine v. United States , --- U.S. ----, 136 S.Ct. 2272, 2280 n.4, 195 L.Ed.2d 736 (2016) ("[O]ur decision today concerning § 921(a)(33)(A)'s scope does not resolve whether § 16 includes reckless behavior."). Noting the open question, our Court of Appeals also declined to answer this question with respect to § 16(b) in Baptiste v. Attorney Gen. of U.S. , 841 F.3d 601, 607 n.5 (3d Cir. 2016). Baptiste also offered no guidance on § 16(a). Id. at 606 n.4 ("BIA did not address [ § 16(a) ] and so we similarly do not address it here.").

The Defendant argues that our Court of Appeal's 2005 ruling in Popal v. Gonzales remains controlling law in the Third Circuit on this point. 416 F.3d 249 (3d Cir. 2005). Popal made plain that, for purposes of § 16(a), "crimes with a mens rea of recklessness do not constitute crimes of violence." Id. at 251. District courts in our Circuit continue to follow Popal . In 2017, the Eastern District of Pennsylvania concluded that a defendant's Pennsylvania aggravated assault conviction, 18 Pa. Cons. Stat. § 2702(a), was not a "crime of violence" under § 4B1.2(a) of the Sentencing Guidelines because the defendant's mens rea did not rise above recklessness. United States v. Haines , 296 F.Supp.3d 726, 732 (E.D. Pa. 2017) ; see also Nelson v. United States , No. 16-cv-3409, 2017 WL 150242, at *5, 2017 U.S. Dist. LEXIS 5116, at *16 (D.N.J. Jan. 12, 2017) (concluding that New Jersey's assault statute could be satisfied by recklessness alone and "under the elements clauses of the Sentencing Guidelines, § 16(a), and the virtually identical language in the ACCA, a crime requiring only recklessness as to the 'use' of force will not qualify as a crime of violence"). In 2016, this Court declined to presume that a guilty plea that failed to specify mens rea qualified as a crime of violence when the divisible statute was not categorically a crime of violence, even though it was "exceedingly unlikely[ ] that his plea arrangement implicated something other than" one of the qualifying mens rea. United States v. Dates , No. 6-cr-83, 2016 WL 5852016, at *3 (W.D. Pa. Oct. 6, 2016).

Thus, the Defendant's underlying conviction cannot as a matter of law qualify as a crime of violence under 18 U.S.C. § 16(a) and is insufficient to support aggravated felon status under 8 U.S.C. § 1101(a)(43)(F).

ii. Section 16(b)

Our Court of Appeals has held that § 16(b) is unconstitutionally vague in the immigration context and therefore invalid. Baptiste , 841 F.3d at 615-21. Just recently, the Supreme Court reached the same holding in Sessions v. Dimaya , --- U.S. ----, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). Even though the Baptiste and Dimaya holdings occurred well after the Defendant's 2011 Removal Proceeding, the Court concludes that there is a reasonable likelihood that had the Defendant not been deprived of his ability to challenge the constitutionality of § 16(b) beginning at that time, he would have ultimately been successful.

Had the Defendant gotten the ball rolling by using the available mechanisms to challenge his removal at that time, he would have likely ultimately had a successful result. Given that the arguments that were being asserted around that time in these regards in other cases have actually proven successful, the Court concludes that that is enough for the Defendant to carry his burden here. And this approach is consistent with the question at the core of the analysis and holding in Charleswell , that is whether there is a reasonable likelihood that the "result" would have been different if the error in the removal proceeding had not occurred. Charleswell , 456 F.3d at 362. And contrary to the contention of the Government that this Court is constrained to consider only the state of the law to be applied by the IJ at the initial administrative hearing, ECF No. 79, at 12-14, the Charleswell Court expressly focused on the "result" in the context of the alien advocating his position on direct appeal. 456 F.3d at 362. Since a "fundamental defect" or error that renders a removal proceeding "fundamentally unfair" for purposes of § 1326(d) includes the denial of a statutory right to appeal, this Court is obligated to consider not simply the likely "result" of the Defendant's hypothetical initial hearing before an IJ, but also the "result" of the Defendant's use of all of the legal processes that would have been available to him. Id.

The argument that § 16(b) was unconstitutionally vague was indeed successful at our Court of Appeals in Baptiste . Baptiste's removal proceedings were instituted only nineteen months after the Defendant's, and the underlying "aggravated felony" involved there also arose under New Jersey's aggravated assault statute. Baptiste , 841 F.3d at 604.

But the constitutionality of § 16(b) was a hot topic in Circuits beyond, and indeed prior to, the Third Circuit's decision in Baptiste . For instance, the Tenth Circuit held § 16(b) unconstitutionally vague with respect to an immigration removal proceeding that began in 2012. Golicov v. Lynch , 837 F.3d 1065, 1067 (10th Cir. 2016). In Golicov , the Defendant was charged as an aggravated felon by DHS in 2012, and he moved to terminate the removal proceedings. Id. The Tenth Circuit ultimately vacated the order of removal and remanded the case to the BIA. Id. Prior to Golicov decision, the Court of Appeals for the Seventh Circuit held § 16(b) unconstitutionally vague, vacating a defendant's sentence. United States v. Vivas-Ceja , 808 F.3d 719, 720 (7th Cir. 2015).

These Court of Appeals decisions were largely anchored in the Supreme Court's 2015 Johnson v. United States opinion, which declared the parallel ACCA residual clause unconstitutionally vague. See --- U.S. ----, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). But, earlier Supreme Court dissents and concurrences had questioned the validity of such a residual clause prior to the decision in Johnson and the Defendant's 2011 Removal Proceeding. Id. at 2562-63 ; Sykes v. United States , 564 U.S. 1, 28, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (Scalia, J., dissenting) ("We should admit that ACCA's residual provision is a drafting failure and declare it void for vagueness."); Chambers v. United States , 555 U.S. 122, 134, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (Alito, J., concurring) ("[E]ach new application of the residual clause seems to lead us further and further away from the statutory text."). The argument that § 16(b), which parallels the ACCA's residual clause, is unconstitutionally vague was an argument ripe for the taking at the time that the Defendant could have (but for the invalid waivers) invoked it at the appropriate proceeding in order to challenge his administrative removal. Indeed, defendants were making the vagueness challenge with respect to the ACCA's parallel residual clause at the time of the Defendant's Removal Proceeding. See, e.g., United States v. Hammons , No. 07-cr-1164, 2012 WL 119616, at *14-15, 2012 U.S. Dist. LEXIS 4739, at *46 (D.N.M. Jan. 12, 2012).

By the time that such an argument would have worked its way through the appellate structure of the immigration courts to our Court of Appeals, the matter likely would have already been resolved-in the Defendant's favor. After all, similarly situated defendant, James Garcia Dimaya, who was placed in removal proceedings in 2010 , prevailed on his § 16(b) argument at the Supreme Court (after prevailing in the Ninth Circuit) nearly eight years later. See Resp't's Br. at 5-6, Sessions v. Dimaya , --- U.S. ----, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018). Thus, it is reasonably likely that near-identical inputs here would have resulted in a near-identical output. Therefore, it is reasonably likely that the Defendant could have successfully challenged his conviction being labeled as a "crime of violence" under § 16(b) had he been given the opportunity to challenge that label beginning during his 2011 Removal Proceedings.

After analyzing both prongs of § 16, the Court concludes it is reasonably likely that had the Defendant challenged his aggravated felon status when he was removed, he would have ultimately succeeded. Therefore, he would have been eligible to present an asylum claim. The next question is whether the Defendant had a reasonably likely chance of success on the merits of that asylum claim.

2. It is reasonably likely that the Defendant's asylum claim in 2011 would have been successful

Multiple members of the Defendant's family have applied for, and in some cases been granted, asylum. Because the Defendant avers he would assert asylum on the basis of the same events from which his family has asserted asylum claims, the Court begins with a summary of those other asylum applications.

First, the Defendant's sister ("Sister"), who purportedly came to the United States in March 2012, sought asylum, and her application remains active. (App. to Def.'s Suppl. Br. Regarding Prejudice ("Def.'s Suppl. App.") 337, ECF No. 69-1; Tr. of Proceedings, ECF No. 31, 94:11-20.) DHS made a finding that there was a "significant possibility" that her claim would be found credible in a full asylum hearing and that she had established a credible fear of persecution. (Def.'s Suppl. App. 349, ECF No. 69-1.) Her hearing has not yet occurred. (ECF No. 31, 94:11-20.) According to Sister's testimony in this case, her application for asylum is based on her history of suffering abuse and rape in El Salvador, which led to Sister testifying against her r