United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant Jhonathan
Rojas-Marcano's Motion to Dismiss Complaint [Doc. 9],
filed on February 5, 2018. The United States responded on
February 7, 2018. [Doc. 12]. Defendant did not reply. The
Court heard argument from the parties at a hearing on the
motion on February 21, 2018. The Court has considered the
briefing, oral argument, relevant portions of the record, and
relevant authorities. Being otherwise fully advised in the
premises, the Court finds that Defendant's Motion to
Dismiss Complaint is not well-taken and will be DENIED.
was charged by Complaint with Entry Without Inspection, in
violation of 8 U.S.C. § 1325(a)(1). [Doc. 1]. According
to the Complaint, on January 12, 2018, U.S. Border Patrol
agents encountered Defendant in Luna County, New Mexico.
Id. at 1. The Complaint states that Defendant
admitted he was a citizen of Venezuela and had crossed the
United States/Mexico International Boundary on January 12,
2018, at a place not designated as a legal International Port
of Entry. Id. The Complaint further states,
“There is no evidence to indicate that the defendant
has applied for permission from the appropriate authority to
enter or remain in the United States legally.”
filed the instant motion to dismiss the Complaint with
prejudice. [Doc. 9]. Defendant contends that he left
Venezuela “because of the threats of violence and
insecurity he experienced in his country, as well as his
inability to meet his daily subsistence needs
there.”Id. at 1. He states that he
entered the United States on January 12, 2018, to seek
asylum. Id. Defendant argues that Article 31 of the
Convention Relating to the Status of Refugees (“Refugee
Treaty”), which prohibits states from penalizing
refugees on the basis of their illegal entry or status,
provides an affirmative defense to his criminal charge and
warrants dismissal of the Complaint. [Doc. 9] at 2-3.
Defendant maintains that, as a refugee seeking asylum in the
United States, he is deserving of the protections of Article
31. Id. at 3-4.
government opposes the motion on two fronts. [Doc. 12]. It
argues as an initial matter that the Refugee Treaty is not
binding domestic law and therefore it “confers no
rights upon Defendant.” Id. at 4-5. Second,
the government argues that, even if the protections of
Article 31 were legally enforceable, Defendant still would
not be entitled to rely on them because he does not satisfy
all of the requirements of Article 31. Id. at 5-7.
Namely, the government argues that Article 31 requires that
the alien seeking asylum “must have come to the United
States directly from a territory where his life or freedom
was threatened” and “must present himself without
delay to the authorities.” Id. at 6. The
government maintains that Defendant satisfies neither of
United Nations Convention Relating to the Status of Refugees
(“Refugee Treaty”) provides certain protections
for refugees seeking asylum. Refugee Treaty, July 28, 1951,
189 U.N.T.S. 150. Although the United States is not a
signatory to the Refugee Treaty, it is bound to comply with
it pursuant to its accession to the United Nations Protocol
Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T.
6223 (“Protocol”). See INS v. Stevic,
467 U.S. 407, 416 (1984).
31 of the Refugee Treaty provides as follows:
Refugees unlawfully in the Country of Refuge
1. The Contracting States shall not impose penalties, on
account of their illegal entry or presence, on refugees who,
coming directly from a territory where their life or freedom
was threatened in the sense of article 1, enter or are
present in their territory without authorization, provided
they present themselves without delay to the authorities and
show good cause for their illegal entry or presence.
another court has summarized the provision,
“[i]nversely paraphrased, contracting states are free
to prosecute when refugees illegally enter either from a
country in which they have settled following their exodus
from the country of persecution, or when they fail to
immediately notify authorities that they are seeking asylum
and explain their illicit entry.” United States v.
Malenge, 472 F.Supp.2d 269, 273 (N.D.N.Y. 2007). In
short, by its plain text, Article 31 applies only when the
following conditions have been satisfied: (1) the party
seeking relief is a “refugee”; (2) the refugee
came to the United States directly from the territory from
which he fled; (3) the refugee presented himself without
delay to the authorities; and (4) the refugee has good cause
for his unlawful entry or presence.
parties dispute both whether the Refugee Treaty and Protocol
create enforceable rights on which Defendant may rely and
whether, assuming they do, Article 31 applies to the facts
and circumstances of this case. The Court need not decide
whether the Refugee Treaty and Protocol create enforceable
rights because, even assuming they do,  the Court finds
that Defendant cannot rely on the protections of Article 31.
Therefore, the prosecution of Defendant for Entry Without
Inspection, pursuant to 8 U.S.C. § 1325(a)(1), does not
violate the treaty obligations of the United States.
government has pointed out, Defendant fails to satisfy two of
the requirements of Article 31. First, Defendant did not come
to the United States directly from Venezuela, i.e., the
territory from which he fled. Rather, he entered the United
States from Mexico. Defendant's briefing does not address
this point, and counsel for Defendant conceded during oral
argument that Defendant did not enter directly from
Venezuela. Second, Defendant did not present himself
“without delay” to the authorities upon entering
the United States. According to the government, Defendant and
two other undocumented persons were attempting to conceal
themselves under some brush when the agents found them. [Doc.
12] at 1. Following his arrest, Defendant told the agents
that he had entered the United States to seek employment in
Seattle, Washington. Id. at 2. Defendant then stated
that he feared returning to Venezuela because of the gang
violence there. Id. His arrest records confirm that
he claimed “Credible Fear due to the gang violence in
Venezuela.” [Doc. 9-1] at 18. Although Defendant's
statements to the ...