on the briefs:[*]
FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. NO. 5:17-CR-00263-M-1)
William P. Earley, Assistant Federal Public Defender,
Oklahoma City, Oklahoma, for Defendant-Appellant.
J. Troester, First Assistant U.S. Attorney, and William E.
Farrior, Assistant U.S. Attorney, Oklahoma City, Oklahoma,
HARTZ, MURPHY, and CARSON, Circuit Judges.
MURPHY, CIRCUIT JUDGE.
Jose Luis Eliseo Arias-Quijada entered a conditional guilty
plea to illegal reentry into the United States, in violation
of 8 U.S.C. § 1326. He reserved the right to appeal the
district court's denial of his Motion to Assert a Defense
of Duress. In this appeal, Arias-Quijada challenges the
denial of his motion, arguing he presented sufficient
evidence to create a triable issue on the affirmative defense
of duress. He specifically contests the district court's
conclusion that he failed to make a bona fide effort to
surrender to immigration authorities once the alleged duress
lost its coercive force. See United States v.
Portillo-Vega, 478 F.3d 1194, 1201 (10th Cir. 2007).
jurisdiction pursuant to 28 U.S.C. § 1291, this court
affirms the district court's order
denying Arias-Quijada's motion.
is a citizen of El Salvador. He was removed from the United
States by order of an immigration judge in 2005 and again in
2014. In late 2017, Arias-Quijada was taken into custody by
immigration officers in Oklahoma City, Oklahoma. A search of
government records revealed he had not received permission to
reenter the United States.
sought a pretrial ruling on the admissibility of evidence to
substantiate his assertion he illegally reentered the United
States only because of duress. Arias-Quijada proffered facts
and supporting documents detailing his interactions with the
Mara Salvatrucha (MS-13) gang and the 18th Street (Barrio 18)
gang in El Salvador during his adolescent years. He alleged
both gangs attempted to recruit him and he was tortured by
the Barrio 18 gang when he was fifteen years old.
Arias-Quijada also proffered details about a serious assault
perpetrated on him by MS-13 gang members after he was removed
to El Salvador in 2014.
response to Arias-Quijada's pretrial motion, the
government argued he could not meet his burden of proving a
defense of duress. It asserted Arias-Quijada was notified of
his rights regarding fear of persecution when he was removed
in 2005 and it proffered evidence showing he was informed of
the process for requesting and obtaining permission to
lawfully reenter the United States. Exhibits to the
government's response also showed that Arias-Quijada was
given a list of free legal service providers when he was
removed in 2005 and 2014. The government advised the district
court that its records indicated Arias-Quijada never
attempted to obtain permission to reenter the country, never
advised immigration officials of his presence, and never
formally sought asylum in the United States. As to the
elements of a duress defense, the government argued
Arias-Quijada's proposed evidence was insufficient to
satisfy the elements of a duress defense. Specifically, it
asserted Arias-Quijada failed to meet his burden of showing
he had no legal alternative to entering the United States
unlawfully because he could have migrated to other countries,
attempted to reenter the United States legally, or submitted
to U.S. immigration officials and reported the alleged
threats once they were no longer imminent. The government
also argued Arias-Quijada could not show a well-grounded fear
of imminent harm because his allegations involved threats of
bodily harm that occurred three years prior to his
apprehension. Thus, they were too remote to satisfy the
imminence requirement. Finally, the government argued
Arias-Quijada could not show his continuing violation of U.S.
immigration laws was either necessary to avoid the acute harm
he faced in El Salvador or to forgo actions to mitigate his
district court denied Arias-Quijada's motion to assert a
defense of duress. The court concluded Arias-Quijada did not
meet his burden of proving a duress defense by a
preponderance of the evidence because he did not show he made
a "bona fide effort to surrender as soon as the duress
lost its coercive force." Instead, he remained
undetected in ...