UNITED STATES v. DAVILA HERNANDEZ (2025)

MEMORANDUM AND ORDER

Defendant LUIS LAURO DAVILA-HERNANDEZ is charged by criminal complaint with being found in the United States after having previously been deported in violation of 8 U.S.C. § 1326. (Dkt. No. 1). On June 27, 2025, the Magistrate Judge presided over a preliminary examination hearing pursuant to 18 U.S.C. § 3060 and Rule 5.1 of the Federal Rules of Criminal Procedure. Contemporaneous to the hearing, Defendant filed a Motion to Dismiss Criminal Complaint and Request for Immediate Release (Dkt. No. 6), as well as a Supplemental Memorandum (Dkt. No. 8) (collectively, the “Motion”).

Through the Motion, Defendant attacks the offense element concerning his lack of permission or lawful status to return to the United States. In support, Defendant offers documentation to support that, after his prior deportation, Defendant submitted a Bona Fide U-Visa Petition (Form I-918) and Waiver of Inadmissibility (Form I-192). According to Defendant, the recipient of a Bona Fide Determination (“BFD”) issued by U.S. Citizenship and Immigration Services (“USCIS”) may lawfully remain in the United States while awaiting final adjudication of a U-Visa Petition. Defendant takes that position that, because he was issued a BFD on February 8, 2022, his presence in the United States is legally authorized.

The Government has filed a response in opposition. (Dkt. No. 10). According to the Government, the issuance of a BFD does not, of itself, provide legal status to remain in the United States. The Government also argues that, even if Defendant did gain such status, he did not otherwise have permission from the Attorney General to re-enter the United States.

The Magistrate Judge now concludes that the Motion (Dkt. Nos. 6, 8) should be denied and enters a finding of probable cause to believe that Defendant committed the charged offense and, therefore, that he must appear for further proceedings.

I. LEGAL STANDARD

The purpose of a preliminary hearing is to ascertain “whether or not there is probable cause to warrant detention of the accused pending a grand jury hearing.” United States v. Coley, 441 F.2d 1299, 1301 (5th Cir. 1971). A defendant must be ordered to appear for further proceedings based on findings that there is “probable cause to believe an offense has been committed and the defendant committed it ․” Fed. R. Crim. P. 5.1(e). Absent these findings, the complaint must be dismissed and the defendant discharged. Fed. R. Crim. P. 5.1(f). A discharge for lack of probable cause, however, does not preclude the government from later prosecuting the defendant for the same offense. Id.

Probable cause means “the existence of reasonable grounds to believe the accused committed the charged offense.” In re Extradition of Vargas, 978 F. Supp. 2d 734, 746 (S.D. Tex. 2013). The term refers to “evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused's guilt.” In re Extradition of Cervantes Valles, 268 F. Supp. 2d 758, 772 (S.D. Tex. 2003). In other words, “[p]robable cause is measured against an objective standard.” United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004) (citing Beck v. Ohio, 379 U.S. 89, 96 (1964)).

“For purposes of Rule 5.1, the probable cause determination is made de novo relative to the arrest, based on the facts and circumstances as they exist at the time of the preliminary hearing.” United States v. Perez, 17 F. Supp. 3d 586, 593 (S.D. Tex. 2014). The examining judge must engage in “a totality of the circumstances analysis and make a practical, common sense decision whether, given all the circumstances, there is a fair probability that the defendant committed the crime.” Vargas, 978 F. Supp. 2d at 746-47. “Proof of probable cause requires less evidence than ․ proof beyond a reasonable doubt—but more than ‘bare suspicion.’ ” United States v. Banuelos-Romero, 597 F.3d 763, 768 (5th Cir. 2010) (quoting United States v. Rayborn, 872 F.2d 589, 593 (5th Cir. 1989)). At the same time, “[t]he probable cause requirement does ‘not demand any showing that [the belief that an offense was committed] is correct or more likely true than false.’ ” United States v. Antone, 753 F.2d 1301, 1304 (5th Cir. 1985) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)); see also United States v. Garcia, 179 F.3d 265, 269 (5th Cir. 1999) (“[T]he requisite ‘fair probability’ is something more than a bare suspicion, but need not reach the fifty percent mark.”).

The prosecution has the burden of offering enough evidence of probable cause, and all reasonable inferences are drawn in its favor. Perez, 17 F. Supp, 3d at 593-94. “[I]t is ‘well established ․ that a showing of probable cause cannot be negated simply by demonstrating that an inference of innocence might also have been drawn from the facts alleged.’ ” United States v. Coiscou, 793 F. Supp. 2d 680, 685 (S.D.N.Y. 2011) (quoting Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007)). Nor will an arrestee's denials and hypothetical explanations—even if plausible enough to raise reasonable doubts about guilt—operate of themselves to negate probable cause. See United States v. Delossantos, 536 F.3d 155, 159-61 (2d Cir. 2008).

The Federal Rules of Evidence do not apply at a preliminary hearing. Fed. R. Evid. 1101(d)(3). A probable cause finding, therefore, may be based entirely on hearsay. Fed. R. Crim. P. 5.1(e) (Advisory Committee Note to 2002 Amendment). Moreover, at the preliminary hearing, the defendant may cross-examine witnesses and introduce evidence but may not object on the ground that the evidence was unlawfully acquired. Fed. R. Crim. P. 5.1(e).

II. ANALYSIS

The Government argues that the issuance of a BFD does not confer legal status to remain in the United States. The Government points, in this regard, to the USCIS Policy Manual, which explains the relevant process as follows:

During the BFD process, USCIS first determines whether a pending petition is bona fide. Second, USCIS, in its discretion, determines whether the petitioner poses a risk to national security or public safety, and otherwise merits a favorable exercise of discretion. If USCIS grants the alien a Bona Fide Determination Employment Authorization Document (BFD EAD) as a result of the BFD process, USCIS then also exercises its discretion to grant that alien deferred action for the period of the BFD EAD.

USCIS Policy Manual, Chapter 5—Bona Fide Determination Process, June 24, 2025, available at https://www.uscis.gov/policy-manual/volume-3-part-c-chapter-5. The Government represents that it has no record of Defendant ever having applied for or being granted an employment authorization document, such that Defendant did not reach the second step of the BFD process. As the Government would note, this is reflected in the correspondence sent by USCIS to Defendant, which merely invites Defendant to submit a Form I-765 Application for Employment Authorization. (See Dkt. No. 6-1 at 3). The correspondence further states that it “does not constitute valid U nonimmigrant status or employment authorization, and may not be used to demonstrate legal immigration or employment status.” (Id. at 4).

The Government further argues that, even if the correspondence somehow granted Defendant status to be in the United States, a § 1326 violation can come by way of re-entry into the United States without consent of the Attorney General to apply for re-admission, see United States v. Flores-Peraza, 58 F.3d 164, 166 (5th Cir. 1995) (listing elements for violation of § 1326), and there is no record that Defendant ever applied for or received such consent.

Here, the Magistrate Judge agrees with the Government's reading of the relevant policy documents that the issuance of a BFD, alone, does not confer some sort of lawful status to be or remain in the United States. The very BFD correspondence relied on by Defendant disclaims the conferral of status and only invites him to request formal authorization. According to the Government, there is no record that Defendant ever moved forward with requesting authorization, let alone that he was granted the same.

The Magistrate Judge also agrees with the Government that there is probable cause to support that Defendant re-entered the United States without consent of the Attorney General. According to the preliminary hearing testimony and supporting documentation, on June 19, 2025, Defendant was encountered by Border Patrol in the vicinity of the U.S.-Mexico border near Mission, Texas. Upon being interviewed by immigration officials, Defendant admitted that, earlier that same day, he entered the United States by rafting across the Rio Grande River. (Dkt. No. 10-1). Citizenship database queries conducted by Border Patrol agents failed to reflect any record of Defendant's application for lawful re-entry. (See id.).

III. FINDING

For these reasons, the Motion (Dkt. Nos. 6, 8) is DENIED, and the Magistrate Judge FINDS PROBABLE CAUSE to hold Defendant for further proceedings in accordance with Rule 5.1 of the Federal Rules of Criminal Procedure.

IT IS SO ORDERED.

J. SCOTT HACKER, United States Magistrate Judge