Date: 10-25-2024

Case Style:

United States of America v. Daniel Avendano-Silva and Yesica Villanueava-Martinez

Case Number: 24-CV-137

Judge: Susan Oki Mollway

Court: United States District Court for the District of Hawaii (Honolulu County)

Plaintiff's Attorney: United States District Attorney’s Office in Honolulu

Defendant's Attorney:

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Description:

Honolulu, Hawaii immigration criminal defense lawyers represented the Defendants charged with being in the United States without authorization.

Petitioners came separately to the United States from Mexico as minors. Both entered without legal authorization and remain here illegally, having been in the United States for decades. They have three children born in the United States and strong community ties. They are facing deportation not only because of their illegal entry but also because they were convicted in 2012 of crimes that the law deems to involve moral turpitude (“CIMTs”).
United States v. Avendano-Silva, CIV. 24-00137 SOM/RT, CRIM. 11-00763 SOM (D. Haw. Oct 25, 2024)

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12. In 2009, Petitioners applied for United States passports for their children, thinking the passports would be evidence of the children's United States citizenship if Petitioners were ever deported. See Avendano-Silva Decl., ECF No. 61-3, PageID # 319; Villanueva-Martinez Decl., ECF No. 61-4, PageID # 333; Avendano-Silva Test., ECF No. 94, PageID # 572. The applications were submitted at a United States Post Office, where a postal employee asked Petitioners for identification. The employee refused to accept their Mexican passports as valid forms of identification. See Avendano-Silva Decl., ECF No. 61-3, PageID # 319; Avendano-Silva Test., ECF No. 94, PageID # 589. “[A]fraid of admitting that [they] were living in the United States without immigration status,” they presented false permanent resident cards to the employee. Avendano-Silva Decl., ECF No. 61-3, PageID # 319.

13. Two years later, in 2011, Government agents visited Petitioners at their home to discuss the passport applications. See Avendano-Silva Decl., ECF No. 61-3, PageID # 320; Villanueva-Martinez Decl., ECF No. 61-4, PageID # 333. Petitioners cooperated, answering questions in their living room. See Avendano-Silva Decl., ECF No. 61-3, PageID # 320; Villanueva-Martinez Decl., ECF No. 61-4, PageID # 334. At the end of the conversation, which was in English, the agents said that they had to arrest one of them. Avendano-Silva volunteered. See Avendano-Silva Decl., ECF No. 61-3, PageID # Villanueva-Martinez Decl., ECF No. 61-4, PageID # 334; Avendano- Silva Test., ECF No. 94, PageID # 573; Avendano-Villanueva Test., ECF No. 95, PageID # 676. The arrest occurred on July 27, See ECF No. 47 (Avendano-Silva's Presentence Investigation Report), PageID #...

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46. In connection with her sentencing, Villanueva-Martinez submitted an allocution letter, which the court took into account in sentencing her. See ECF No. 41-1, PageID # 130. That letter stated, “[T]he reason why we applied for the passports is [be]cause we wanted to move to Mexico so we wouldn't have to hide and my kids wouldn't have to see their dad and mom get taken away by the police or immigration.” Id. At the hearing on the present motion, Villanueva-Martinez said that Dayvalene Avendano wrote the letter signed by Villanueva-Martinez. See Villanueva-Martinez Test., ECF No. 94, PageID #s 635-36. Villanueva-Martinez testified that the sentence in the letter about moving back to Mexico was “a big mistake” and that she signed the letter without reading it. See id., PageID # 650. Although the letter is addressed to “your Honor,” she testified that she could not clearly recall who the letter was supposed to go to. At one point, she testified that it was supposed to go to an immigration judge. However, she was only involved with the criminal proceedings in this court at the time the letter was submitted. Immigration proceedings had not yet begun. Even viewing the letter in the light most favorable to Petitioners, the court finds that it damages Villanueva-Martinez's credibility. If indeed she signed a letter without knowing of and agreeing with its contents, that gives this court pause about the reliability of the declaration she signed and submitted in support of the present motion.

47. On January 12, 2012, the court sentenced Avendano-Silva to time served, 3 years of supervised release, and a $400 special assessment. Villanueva-Martinez was sentenced to 3 years of probation and a $400 special assessment. See ECF Nos. 42-44. At the sentencing hearing, this judge told Petitioners that they had to cooperate with the United States Department of Homeland Security, including participating in any removal hearing. See ECF No. 54, PageID # 227.

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United States v. Avendano-Silva, CIV. 24-00137 SOM/RT, CRIM. 11-00763 SOM (D. Haw. Oct 25, 2024)

Outcome: 1. Title 8, Chapter 12, of the United States Code governs immigration and nationality. Section 101 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, contains definitions.[4] For example, it defines an “alien” as “any person who is not a citizen or national of the United States.” INA § 101(a)(3), 8 U.S.C. § 1101(a)(3). “Admission” is defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A).

2. Any “alien” who is in the United States but has not been “admitted” is deemed an “applicant for admission.” INA § 235(a)(1), 8 U.S.C. § 1225(a)(1). An individual may be “inadmissible” on a number of grounds. Relevant here, an “alien” is “inadmissible” when he or she has been convicted of a CIMT. INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I). Additionally relevant here, an “alien” who is present in the United States without being “admitted” is “inadmissible.” INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i).

3. When an “alien” is convicted of a CIMT for which a sentence of one year of more may be imposed and commits the crime within 5 years after the date of admission, that alien is “deportable.” INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(1). Additionally, when an “alien” is in the United States in violation of law, that individual is “deportable.” INA § 237(a)(1), 8 U.S.C. § 1227(a)(1). A “deportable alien” may be “removed” from the United States. Id.

4. “Removal proceedings” are initiated by providing an alien with written notice to appear. INA § 239, 8 U.S.C. § 1229. “Removal proceedings” are governed by INA § 240, 8 U.S.C. § 1229a. “Cancellation” of an alien's removal may be sought under INA § 240A, 8 U.S.C. § 1229b. However, removal may
not be cancelled unless certain conditions are met, including that the alien not have been convicted under INA § 212(a)(2), 8 U.S.C. § 1182(a)(2), which includes CIMTs under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I). See INA § 239(b)(1)(C), 8 U.S.C. § 1229b(b)(1)(C).

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