MEMORANDUM OPINION AND ORDERI. INTRODUCTION Defendant Leopoldo Zamora Guzman was charged with one count of illegal reentry after having been removed from the United States, in violation of Title 8, United States Code, Section 1326(a) and (b)(1). Pursuant to Section 1326(d) of the statute, a defendant charged with illegal reentry may collaterally attack the underlying removal or deportation order upon which the charge is based. Here, Mr. Guzman challenges the validity of the removal order pursuant to which he was previously removed from the United States, arguing that the immigration judge failed to advise him about his right to seek a form of discretionary relief called “voluntary departure.” Because the immigration judge’s error constitutes a “fundamental error” under the law of this Circuit, and Mr. Guzman has shown by a preponderance of the evidence that he was prejudiced by that error, his motion to dismiss the indictment is GRANTED.II. FACTSA. Mr. Guzman’s Status and Removal ProceedingsMr. Guzman is a citizen of Mexico. He does not have legal status in the United States. In June 2009, Mr. Guzman pleaded guilty to two separate charges of aggravated unlicensed operation of a motor vehicle in New York State court, and was sentenced to ten months of imprisonment. Declaration of Annalisa Miron, Dkt. No. 12 (“Miron Decl.”), 7. Mr. Guzman was in custody while those cases were pending.On October 5, 2009, Mr. Guzman appeared in Oakdale, Louisiana for a removal hearing before Immigration Judge John A. Duck, Jr. Id. 4. With the assistance of a Spanish translator, Judge Duck advised the entire group of illegal entrants to the United States appearing before him regarding a number of their basic rights, including their right to retain counsel, and the right to appeal his decision both to a higher immigration tribunal in Washington, D.C. and, thereafter to a federal court. Id., Ex. B. All of the illegal entrants appearing before Judge Duck-speaking in unison-confirmed that they understood that they had the right to appeal his decision, but that if they failed to do so, and accepted his decision, that the decision would be final.Significantly for purposes of this motion, Judge Duck never advised Mr. Guzman of his right to seek voluntary departure. He was obligated to do so. See In Re Cordova, 22 I. & N. Dec. 966, 970 (B.I.A. 1999). The Government has not presented evidence that would explain or justify that failure. In particular, there is no basis for the Court to conclude that Judge Duck made a conscious determination that Mr. Guzman was ineligible for voluntary removal during or prior to the hearing.Judge Duck engaged in an individual colloquy with Mr. Guzman, who was then 40 years old. Mr. Guzman was not represented by counsel. Mr. Guzman acknowledged that he was a citizen of Mexico and that he had entered the United States at a location not designated for entry by the United States Attorney General. As a result, Judge Duck found that Mr. Guzman was removable from the United States.Mr. Guzman told Judge Duck that he was not afraid to return to Mexico, but that he did not know where he would go. As he described to Judge Duck, Mr. Guzman had first entered the United States in 1990. In 1994, he returned to Mexico for five years. He reentered the United States in November 1999, and had been living in the United States since then. Mr. Guzman’s siblings, his wife, and two of his children were living in the United States; his wife and older child, Mr. Guzman said, did not have legal status in the United States, but his youngest child-six years old at the time-was born in New York. Miron Decl., Ex. B, at 24:26-28:48. According to Mr. Guzman, he had been living in the United States continuously for nearly 10 years.Judge Duck asked Mr. Guzman “Have you the funds immediately available to pay your passage to Mexico?” Id., at 28:05. And Mr. Guzman responded “No.” Id. at 28:12. Judge Duck later ordered Mr. Guzman’s removal from the United States. After ordering Mr. Guzman’s removal, Judge Duck asked Mr. Guzman if he understood the decision, and Mr. Guzman responded affirmatively. When Judge Duck asked “Do you wish to accept my decision or reserve appeal?”, Mr. Guzman responded “That’s fine, I accept.”Mr. Guzman accepted Judge Duck’s decision, but did not accept its result. After Mr. Guzman was removed from the United States, he returned. Indeed, according to the information presented to the Court by the United States during Mr. Guzman’s initial bail review hearing, after Mr. Guzman’s removal in October 2009, he was removed to Mexico again in January 2013, and yet again just months after in March 2013. Transcript of Bail Review Hearing Before Hon. Debra Freeman, May 4, 2018, Dkt. No 14-1, at 4. Mr. Guzman was not deterred-he again reentered the United States, leading to this case.B. Mr. Guzman’s Arrest and Indictment1Mr. Guzman was arrested by officers the Department of Homeland Security on February 27, 2018. The officers had learned that Mr. Guzman had illegally reentered the United States, and had obtained a warrant for his arrest. When the officers confronted Mr. Guzman on the street near Juliana’s, the Brooklyn pizzeria where he worked, they identified themselves, telling him “Stop. Police.” Mr. Guzman did not stop. Instead he ran, but was apprehended quickly by one of the officers.Mr. Guzman first appeared in this Court on February 28, 2018. He was held in custody with his consent. The grand jury handed down the indictment in this case on March 13, 2018, charging Mr. Guzman with a violation of Title 8, United States Code, Section 1326(a) and (b)(1). Mr. Guzman filed this motion to dismiss the indictment on May 15, 2018. Dkt. No. 11. In support of his motion, Mr. Guzman submitted an affidavit describing, among other things, his understanding of the immigration proceedings before Judge Duck. Guzman Decl., Dkt. No. 12-3 (“Guzman Decl.”).In his declaration, Mr. Guzman states that while he was provided the assistance of a Spanish language interpreter during the hearing, “the interpreter was speaking very fast and I did not understand everything she said.” Id. 5. He also asserted that he was not aware that he had the option to leave the United States voluntarily, and that “If I had known that I could leave voluntarily instead of being deported, I would have chosen to leave voluntarily.” Id. 6.Mr. Guzman also explained his understanding of Judge Duck’s question at the hearing: “Have you the funds immediately available to pay your passage to Mexico?” According to Mr. Guzman:At the hearing, the judge asked me if I had the funds immediately available to fund my travel to Mexico. I understood the judge to be asking whether I had the money on my person. I remember being confused and thinking “of course I don’t have the money on me,” as I had been in jail for several months…. If the judge had told me that I could have the opportunity to contact my family to ask them to send the money for travel, I would have done that. I am certain my family could have afforded the airplane ticket to Mexico. Before my arrest for the unlicensed driving cases, I had been working as a taxi driver making approximately $700/week.Id.
