Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 1 of 17 1 UNITED STATES DISTRICT COURT 2 FOR THE WESTERN DISTRICT OF TEXAS 3 U.S. MAGISTRATE JUDGE 4 EL PASO DIVISION 5 UNITED STATES OF AMERICA )No. EP:17-MJ-4409(1)-MAT 6 vs. ) EP:17-MJ-4456(1)-MAT 7 ELBA LUZ DOMINGUEZ-PORTILLO ) MAYNOR ALONSO CLAUDINO LOPEZ ) JOSE FRANCIS YANES-MANCIA ) NATIVIDAD ZAVALA-ZAVALA ) BLANCA NIEVE VASQUEZ-HERNANDEZ) _______________________________ EP:17-MJ-4461(1)-MAT 8 9 10 EP:17-MJ-4462(1)-MAT EP:17-MJ-4499(1)-MAT 11 El Paso, Texas 12 November 1, 2017 13 STATUS CONFERENCE 14 Before the Honorable Miguel A. Torres 15 16 17 18 19 1 A P P E A R A N C E S: ---------------------FOR THE GOVERNMENT: MS. LAURA FRANCO GREGORY MR. DOUGLAS RENNIE ----------------------Assistant United States Attorney 700 E. San Antonio El Paso, Texas 79901 20 21 22 23 24 25 FOR DEFENDANT: MR. SERGIO GARCIA --------------------------700 E. San Antonio, Suite D-401 El Paso, Texas 79901 Proceedings reported by stenotype. computer-aided transcription. Transcript produced by Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 2 of 17 1 THE COURT: 2 Let me call the following cases. Marshals 2 you don't have to bring the Defendants up. 3 United States of America versus Elba Luz Dominguez-Portillo; 4 EP:17-M-4456, the United States of America versus 5 Maynor Alonso Claudino Lopez; EP:17-M-4461, the United States 6 of America versus Jose Francis Yanes-Mancia; EP:17-M-4462, the 7 United States of America versus Natividad Zavala-Zavala; and 8 EP:17-M-4499, the United States of America versus 9 Blanca Nieve Vasquez-Hernandez. 10 11 12 13 We are here for a status conference I had set. Let me get announcements, please. MS. GREGORY: Good afternoon, Your Honor, Laura Franco Gregory and Douglas Rennie for the United States. 14 THE COURT: 15 MR. GARCIA: 16 EP:17-M-4409, the Good afternoon. Good afternoon, Judge, Sergio Garcia on behalf of all of the Defendants. 17 THE COURT: Well, let me -- I know this is kind of a 18 slightly unusual proceeding. 19 what is on my mind in these cases. 20 number of months a number of voluminous 1325 prosecutions or a 21 number of cases involving Central American defendants who are 22 accompanied by minor children or minor siblings at the time 23 that they were coming up. 24 that was made to me. 25 this during the plea and sentencing hearings in these cases. Let me just let the parties know We have had in the last At least that was the representation Most of the time I have found out about Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 3 of 17 1 3 As you are all aware, we set them for one hearing, and it 2 is either a plea or we will set it for trial at some point 3 after that. 4 the last few months that the individuals indicate they were 5 accompanied by a minor, they don't know where they are, they 6 have not been made aware of the whereabouts or the well being, 7 and some cases also I will say, and this is all part of the 8 public record where they indicated they were not provided 9 information at the time of their arrest and separation from the 10 At that time, it happened with some frequency in minor child. 11 So, I have been troubled by these reports that I am getting 12 from these defendants, and I have asked the CJA counsel that I 13 have appointed in these cases to just assist their clients in 14 trying to get some information from their clients from -- 15 sorry, from the Government with regard to -- I have asked CJA 16 to, frankly, take advantage of the fact they have a lawyer that 17 can make phone calls and ask questions for them just to find 18 out. 19 happens by how anxiety provoking I think it is for these 20 parents who make the representation that this is their child or 21 their sibling in some cases. 22 fact they have an appointed lawyer to try to track some of this 23 information down, and some of the reports I get back is the 24 information is very tricky to track down. 25 I would imagine that, and I am always struck when this So I have taken advantage of the So the Court has done its own research to look into this Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 4 of 17 4 1 situation and some of the legal issues involved, and it is 2 something that is very -- it is a complex issue. 3 it involves laws and agencies that really I had not been 4 familiar with before this issue. 5 I thought was when I did some of these cases I really -- I just 6 need to have better information as to -- I need to have better 7 information as to what the applicable laws are in these cases 8 and really how they can be an issue in this Court in terms of 9 the rearraignments, okay? 10 There are -- I think last week really what Candidly, and I am telling both parties my concern is with 11 issues impacting the voluntariness of the plea because it 12 involves a situation where at least for the Defendants where 13 they were arrested by the Government that the Government at 14 that time obviously they are not going to place the children in 15 custody with them, and they take them to residential centers 16 that are required by law to meet certain requirements of basic 17 -- at least basic -- what is the word? 18 right phrase, but that meet certain basic requirements in terms 19 of their care and their well being. 20 about is really just what appears to be the total lack of 21 information that these Defendants appear to be getting. I can't think of the So, what I am concerned 22 Now, I am not suggesting that this is decisions made by 23 individual agents or by an individual Border Patrol sector here 24 or anything like that or by the Office of Refugee Resettlement, 25 but the bottom line is they are not getting the information, Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 5 of 17 5 1 and I am a little bit troubled that by the time of their pleas 2 they don't have this information, and I certainly had 3 communicated in the past sometimes with defendants who say that 4 their whole goal is to reunite with their kids or find 5 something out about their kids. It is an anxiety that looms 6 large. 7 sincerity of those expressions in most cases. 8 9 I don't think there is a lot of reason to doubt the Here is what I would like to do. I am going to ask the parties -- I am going to issue a specific, and it is not going 10 to be a long order, asking the parties to brief some issues 11 that hopefully can answer some of these questions. 12 to reset this case for a status conference for next week. 13 Thursday is what I am thinking. 14 about that in a second to see what their availability is, but 15 basically, at that point, we can see where we are whether there 16 is a plea at that time or a request for trial or whatever. 17 I am going I will talk to the parties I just would like to get the parties positions, and this is 18 why we have -- I have taken the individual step of appointing 19 the Office of the Federal Public Defenders in this case. 20 are not subject to even some of the limitations that we have 21 with a CJA panel and even in terms of what is authorized 22 specifically in terms of how many hours they can bill, et 23 cetera. 24 going to ask the Public Defender to do this. 25 Office of the Federal Public Defender assisting us in these I thought I am not going to get into that jam. They I am I appreciate the Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 6 of 17 1 6 cases under these unusual circumstances. 2 Here is what I am getting to in terms of the issues. 3 will flush these out a little more and try to finesse them in 4 the order I will put out hopefully by this afternoon or 5 tomorrow morning at the latest. 6 I It is essentially this. The first question is really what are the Government's 7 procedures for providing information to petty misdemeanor 8 defendants at the time of their arrest providing information 9 regarding the well being and the whereabouts of their child? 10 Now, are there statutory -- I don't know what the process 11 is. 12 statutory or regulatory procedures that spell out a certain 13 protocol that should be followed with regard to the parents or 14 is there something under the [inaudible] settlement which I am 15 sure the parties may be familiar with with regard to these 16 unaccompanied minor cases? 17 out many of the requirements for the Office of Refugee 18 Resettlement in handling unaccompanied child issues in lieu of 19 regulations that have not been promulgated. 20 I never heard what the process is exactly. Are there The [inaudible] settlement spells Basically, is there any authority for what information the 21 parents are provided, and my look at this is looking at it 22 really from the side of the parents or the defendants in my 23 Court or who have been in my Court and/or who have active 24 matters in the Court. 25 That's the first issue. The second issue is does a defendant charged with a petty Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 7 of 17 7 1 misdemeanor have any parental rights regarding their children 2 -- sorry, does a defendant charged with a petty misdemeanor 3 immigration offense where they are undocumented, do they have 4 parental rights? 5 here the right to familial association I think the case is 6 Troxler that talks about that under the 14th Amendment. 7 does that -- it has been applied in a number of different 8 contexts and is recognized as a fundamental right. 9 somehow apply to an undocumented alien 1325 defendant basically There is just our research, and in my Court 10 is what I am trying to get to. 11 out. 12 So, Does that It is what I would like to find If so, then the next question would be just assuming that 13 right does exist, is any denial of that right, does it raise 14 any issues akin to what was raised in Kentucky versus Padilla 15 which is this kind of collateral consequence type issue that 16 would have a bearing on the guilty plea. 17 That leads me to my final issue, which is the most 18 important issue, but kind of by necessity it goes at the very 19 end here is do I even have authority to hear any of this? 20 This is coming up to me. 21 context of the Rule 11 guilty plea and the colloquy I have to 22 go through. 23 voluntariness of a plea where we follow certain questions and 24 make sure the plea is purely voluntary and specifically 25 somebody is pleading guilty because they are guilty and for no My concerns come up within the I think it is Rule 11(b)(2) that talks about the Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 8 of 17 1 other reason. 8 So, my concerns have arisen within that. 2 It is not just -- basically, that's my feeling has been 3 that these issues that I am raising kind of falls within my 4 wheelhouse here because they do come up in Rule 11 pleas. 5 least that's kind of my view. 6 don't know. 7 that. 8 9 At I could be wrong about that. I am asking you all to give me your position on I know I am asking a lot. are coming up a lot. These are just questions that I'm really concerned about the issue, and 10 so I hope that these are issues that you will be able to 11 address. 12 wanted to give you an idea of why are we having this hearing 13 and what is really concerning the Court. 14 it. 15 I I'll spell them out a little more specifically. I That's pretty much So, I would like the parties to address that if I could. If we reset this for Thursday, I might ask you all to get 16 me something by Wednesday, Wednesday of next week. Look, this 17 doesn't have to be some [inaudible] monster brief. Address it. 18 If you give me the top -- if there are cases that apply that 19 two or three cases that are critical on a particular issue, 20 that's it. 21 basically an appellate brief on you or something by next 22 Wednesday. 23 are any other issues we need to take up, I would ask you to let 24 me know. 25 I don't want you to feel like I just dropped this I would like to get them addressed, and if there Is there anything else the parties want to bring up at this Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 9 of 17 1 time? I will start with the Government. 2 3 4 9 MS. GREGORY: No, Your Honor. We will receive the order -THE COURT: Yes. It is really these four issues. We 5 are -- I didn't want to come out here essentially empty handed 6 and say I have concerns, wait for my order and we will see you 7 next week. 8 looking at the time, it will probably be first thing tomorrow 9 morning you will have something. 10 11 12 13 We will spell those out and have something out, Mr. Garcia, anything you wanted to raise, sir? MR. GARCIA: Yes, sir, actually I do. Last week I was appointed to this case. My boss called me to her office, and she said I want you to tackle that issue. 14 THE COURT: 15 MR. GARCIA: 16 THE COURT: 17 MR. GARCIA: Okay. I went and I did research. Okay. As you know, these cases basically have 18 the same issue. They are all 1325s and all misdemeanor cases, 19 and I am ready to file a motion. 20 order, but I was ready to file it by this Friday. 21 all these Defendants are similarly situated and taking into 22 account notions of judicial economy, I was going to ask 23 permission from the Court to see if solely for purposes of this 24 motion or the brief that we file if I could solely for that, 25 for that pretrial motion, could I consolidate the Defendants so In fact, I will wait for your But because Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 10 of 17 10 1 I file one motion instead of five repetitive motions, one for 2 each one? 3 THE COURT: 4 MR. GARCIA: 5 THE COURT: Or one brief instead of -One brief. I doubt the Government would have an issue 6 with that. 7 the Government responds to it. 8 efficient way to approach. 9 I will let you file a motion, and we'll see what MS. GREGORY: It sounds like a kind of more The Government has no objection to that. 10 However, the only concern is the Government is hearing about 11 these issues today. 12 this before today's hearing. 13 seven days plus it appears you might perhaps raise other issues 14 in your motion pertaining to these particular Defendants. 15 might cause the Government to need additional time to respond. 16 It appears Defense counsel had notice of MR. GARCIA: The Government would ask for the Just for the record, the only thing I 17 knew is there were five misdemeanors and there were five 18 Defendants, and the reason I know this is because I have a 19 friend who clerks in the Ninth Circuit. 20 were similar. 21 and it is why I went with the research. 22 23 24 25 That Nobody gave me extra info. He informed me they It is how I know, I am not opposing the seven day time limit that Judge might give us. I will wait until -MS. GREGORY: I suppose the Government will have to wait for the Defendants brief if it will include facts Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 11 of 17 1 11 pertinent to each of these particular Defendants. 2 THE COURT: I see what you are saying. 3 MS. GREGORY: I don't know what you're going to file. 4 As a result of it, we would need to respond to whatever motion 5 you anticipate on filing. 6 THE COURT: Sure. Let me think about this for one 7 second. 8 this is a different proceeding than the way we ordinarily 9 handle these 1325s. 10 I do want to put this on the record, again, because I reached out to each party individually just to inform 11 them of what the issue was related to these unaccompanied 12 minors. 13 cases. As to each, there was no discussion of individual 14 MS. GREGORY: 15 THE COURT: The Government does not make that -Or anything like that. I wanted to be 16 clear about that. 17 the United States Attorney's Office, and I reached out to your 18 office just to say it is related to this issue, there may be 19 some briefing involved, and that pretty much concluded that. 20 I didn't want to give, and I reached out to Now, let's think about this issue for a second. These are 21 basically -- you raised a really good point. I don't want to 22 put you in a disadvantage where he will talk about the facts 23 specific to each individual case and you have to respond to 24 that because it is specific to particular cases. 25 the case, it would be a more traditional situation where you If that were Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 12 of 17 12 1 file a motion and the Government responds to the motion. 2 need to think about this for a moment. 3 I Basically, I really want to focus on the legal issues 4 because I will say this, and just bear with me for a moment, 5 Mr. Garcia. 6 MR. GARCIA: 7 THE COURT: Sure. What I did, and the reason I know these 8 Defendants were accompanied by a minor was during the initials 9 when I was on duty last week one of my last questions was are 10 any of you accompanied by a minor child or -- I, at that point, 11 took information and just asked I believe in all of the cases 12 just I think I asked them and I said discuss it with your 13 attorney. 14 Federal Defenders on the case. That's when I made the decision to appoint the 15 In terms of -- I mean, the similarity in each of the facts 16 is that they each represented to me at the initial that yes, I 17 was accompanied by a minor. 18 cases don't tell me anything except the age and gender of the 19 minor that accompanied you and whether it was a son or daughter 20 or something like that. 21 frankly, is pretty much enough for you all to proceed with 22 these issues. 23 motion and response type situation. 24 25 We have those basic facts which, quite I don't know that it needs to be a kind of MR. GARCIA: is no. I think I asked in all of the Judge, if I may? What I was suggesting, The facts are pretty straightforward, and the facts are Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 13 of 17 13 1 not really what impacts the case. 2 mentioned that has the impact on the cases, the issues that you 3 just talked about. 4 A more efficient way for me to address those issues is wait for 5 your order and address precisely those issues in a motion, 6 consolidated motion, and basically a motion to dismiss, but it 7 would be incorporating everything you just talked about because 8 everything you just talked about is relevant to the disposition 9 of this case. 10 It is the law that you just Those are the issues that I was thinking. THE COURT: I see what you are saying. So, now it 11 gets us to what you are talking about. 12 could do then is in anticipation of a motion, this will 13 protract the matter somewhat. 14 aware of that, and I imagine you discussed that with your 15 clients. 16 MR. GARCIA: Yes. 17 specific situation. 18 see them and it is how I -- 19 THE COURT: Well, I think what we Obviously, I am sure you are It is how I found out about the When I was appointed, I quickly went to Sure. Look, we want to do this right, and 20 if we give you some time to file your motion, and give you some 21 time to respond to it, nobody is really behind the eight ball 22 and can address the issues with sufficient time. 23 What do you anticipate in terms of addressing these issues 24 then? You indicated your intention is to file a motion that 25 these are dismissed and want the Government to respond? When Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 14 of 17 1 2 14 would you anticipate filing that? MR. GARCIA: Well, I am ready to file it Friday, but 3 if we could wait for your order, then I will make sure, and I 4 think I will incorporate every matter you talked about. 5 file it next week like you suggested, seven days, and give the 6 Government an opportunity to respond. 7 very complex issue. 8 THE COURT: 9 MR. GARCIA: 10 11 12 13 I can I will tell you it is a I know it is. And that it implicates constitutional amendments. THE COURT: Well, if we -- what do you think, Ms. Gregory? MS. GREGORY: We are in an awkward possession. We are 14 waiting for the Court's order to brief certain issues, but 15 Defense counsel is going to file a motion to dismiss in 16 response to the Court's inquiry on briefing issues. 17 What I would ask then if it appears that it is not merely a 18 brief to the Court, it is going to now turn into a motion to 19 dismiss which the Government would ask for under the local 20 rules the amount of time to respond. 21 THE COURT: Whatever standard time you're entitled to, 22 no problem. I mean -- I think that's what we will do. That's 23 what would be fair. 24 law, but it is becoming an issue where I actually need -- where 25 it is going to be more than briefing. My goal was just to get some answers on If it will be motion, we Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 15 of 17 1 2 will follow whatever standard deadlines. I will ask you because you indicated you were close to 3 filing something anyway. 4 out too long, maybe Tuesday of next week? 5 MR. GARCIA: 6 THE COURT: 7 8 9 10 MR. GARCIA: You got it. If we do Tuesday, and you will have your Just to make sure I cover everything which I think I already did. If you can still produce your order, Judge, giving us the points you want us to cover? THE COURT: 12 MR. GARCIA: 14 I would say how about to not put it time to respond after that, and then we will take up -- 11 13 15 Sure. Then I will double check. I am pretty sure I will cover that. THE COURT: I am sure you will make some reference in 15 your motion incorporating this request, and we will handle it 16 like that. 17 MR. GARCIA: 18 THE COURT: 19 Yes. Is there anything else you wanted to bring up right now, anything? 20 MR. GARCIA: 21 THE COURT: No, Judge, thank you. I appreciate it. I know it is a lot I am 22 asking both sides to do, but it is really an issue very 23 important. 24 MS. GREGORY: 25 THE COURT: Fascinating. It is an interesting legal issue, and it Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 16 of 17 1 is complicated. 16 It deals with statutes and other things. 2 I will tell you, again, keep in mind the last issue I 3 brought up, which is kind of the main issue, is this something 4 that I can even consider? 5 view can make its way into what we do in these misdemeanor 6 cases or under Rule 11 and under the findings of fact I need to 7 make for a Rule 11 colloquy so ultimately that is the 8 fundamental kind of issue. 9 considering? If I have no authority, I have no authority and 10 that's that. If I do, we will take it up at that point. 11 That's really a central issue. 12 MR. GARCIA: 13 THE COURT: The only way that whole issue in my Is it something I should even be Thanks, Judge. I appreciate everybody's patience. I 14 really, really apologize about the mix up with regard to we do 15 some different things on the notice, and we had originally the 16 original lawyers appointed, and then we appointed the 17 Federal Defenders. 18 these issues. 19 and everything else right away so I really do apologize. 20 That's on me. 21 22 I thought it would take care of some of I know it triggers with you all discovery issues Very well, thank you, we are in recess. MR. GARCIA: Thank you, Judge. 23 24 25 * * * * * Case 3:17-cr-02661-KC Document 7 Filed 01/18/18 Page 17 of 17 17 CERTIFICATION _____________ 1 2 3 I certify that the foregoing is a correct transcript from 4 the record of proceedings in the above-entitled matter. I 5 further certify that the transcript fees and format comply with 6 those prescribed by the Court and the Judicial Conference of 7 the United States. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Date: January 17, 2018 /s/ Walter A. Chiriboga, Jr. ____________________________ Walter A. Chiriboga, Jr.