United States v. Jimmy Brizuela ( 2015 )

Case: 14-40951 Document: 00513071113 Page: 1 Date Filed: 06/08/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40951 United States Court of Appeals
Fifth Circuit
FILED
June 8, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff–Appellee,
versus
JIMMY STANLEY BRIZUELA,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:13-CR-476-1
Before KING, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
Jimmy Brizuela was convicted of illegal reentry. He contends that the
district court should have dismissed the indictment because the government
did not refer him to an asylum officer for a reasonable-fear determination
before prosecuting. Finding no error, we affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-40951
I.
Brizuela was removed to El Salvador in April 2013 after being convicted
of an aggravated felony. A month later, a Border Patrol agent detained him
when he tried to reenter. During a later interview with that agent, Brizuela
answered in the affirmative when asked whether he had a fear of persecution
or torture if he were removed again; the agent gave him a notice stating that
the Department of Homeland Security intended to reinstate the order of
removal. The next day, the agent filed a criminal charge for illegal reentry in
violation of 8 U.S.C. § 1326.
Brizuela moved to dismiss the indictment. He contended that, when he
expressed a fear of persecution, the government was required to refer him to
an asylum officer to determine whether he had a reasonable fear of persecution
and would be eligible for withholding of removal. The government had not
referred him for an interview, so Brizuela claimed that it was barred from
prosecuting him for illegal reentry.
After a hearing, the district court denied the motion, holding that the
government’s obligation to refer Brizuela to an asylum officer did not prohibit
it from prosecuting. Brizuela was found guilty by a jury.
That decision not to dismiss is the basis of this appeal. Brizuela contends
that the government’s failure timely to refer him to an asylum officer should
have barred his prosecution for illegal reentry.
II.
Brizuela’s appeal ultimately rests on the underlying assertion that the
government could not prosecute for illegal reentry until he was referred to an
asylum officer for a reasonable-fear interview. He bases this on 8 C.F.R.
§ 241.8(e):
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No. 14-40951
Exception for withholding of removal. If an alien whose prior order of
removal has been reinstated under this section expresses a fear of
returning to the country designated in that order, the alien shall be
immediately referred to an asylum officer for an interview to determine
whether the alien has a reasonable fear of persecution or torture pur-
suant to § 208.31 of this chapter.
Irrespective of whether the government violated § 241.8(e), such a viola-
tion has no relevance to the prosecution for illegal reentry. No legal authority
mandates a pause to criminal proceedings until the reasonable-fear interview
takes place; § 241.8(e) requires that the alien “immediately” be referred but
does not restrict the time to bring criminal charges relative to the time of refer-
ral, nor does it prescribe some collateral impact on criminal proceedings if the
government fails to follow the regulation. And the outcome of those civil pro-
ceedings would have no effect on Brizuela’s criminal case. An alien can still be
prosecuted for illegal reentry under 8 U.S.C. § 1326 even if he qualifies for
withholding of removal; illegal reentry requires, as relevant to this case, only
that the alien was previously removed and then reentered without authori-
zation. With no legal authority requiring a halt on a separate track of the legal
system, dismissing the indictment on this basis would have been error.
Nor can Brizuela salvage his appeal on a constitutional claim. In the
motion to dismiss the indictment, he made passing mention of his due-process
and equal-protection rights, and he has sprinkled sporadic invocations of those
rights in his briefs. Because § 241.8(e) is unrelated to his criminal case, Brizu-
ela has limited ammunition to make a constitutional challenge on this appeal.
A violation of § 241.8(e) does not preclude criminal proceedings or prescribe
different criminal procedures, and this criminal appeal is not the place for
Brizuela to seek civil relief regarding the immigration proceedings.
We have recognized that there are circumstances in which dismissal of
an indictment may be the proper remedy for outrageous government conduct,
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No. 14-40951
but that holds no promise for Brizuela. Even assuming that he is making this
argument and that the failure timely to provide a reasonable-fear hearing is
the sort of wrong that can be the basis of an outrageous-conduct dismissal, the
government’s alleged violation of § 241.8(e) here is not “so shocking to the uni-
versal sense of justice” that it violated the Fifth Amendment. United States v.
Mauskar, 557 F.3d 219, 232 (5th Cir. 2009) (internal quotation marks omitted).
Brizuela has identified no regulations, statute, or constitutional guarantee
that would have justified dismissing the indictment.
AFFIRMED.
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