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United States v. Arias-Quijada

United States Court of Appeals, Tenth Circuit

June 17, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JOSE LUIS ELISEO ARIAS-QUIJADA, a/k/a/ Jose Mendoza, Defendant-Appellant.

         Submitted on the briefs:[*]


          William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

          Robert J. Troester, First Assistant U.S. Attorney, and William E. Farrior, Assistant U.S. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

          Before HARTZ, MURPHY, and CARSON, Circuit Judges.


         I. Introduction

         Defendant-Appellant 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).

         Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the district court's order denying Arias-Quijada's motion.

         II. Background

         Arias-Quijada 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.

         Arias-Quijada 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.

         In its 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 illegal reentry.

         The 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 ...

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