United States District Court, E.D. Virginia, Alexandria Division
HON. LIAM O'GRADY UNITED STALES DISTRICT JUDGE.
Before the Court is defendant Levy Guillermo Ramirez-Mejia's motion to dismiss the indictment charging him with unlawful reentry of a removed alien, in violation of 8 U.S.C. § 1326(a). (Dkt. No. 12). The government opposes the motion (Dkt. No. 15), and the Court heard argument on February 11, 2016. For the reasons that follow, the motion is denied.
Mr. Ramirez-Mejia is a citizen of Nicaragua who entered the United States illegally in 1990 at the age of six. In 2000, Ramirez-Mejia successfully applied for legal permanent resident status under the Nicaraguan Adjustment and Central American Relief Act. In 2004, at the age of 21, he was convicted in Prince William County of Assault and Battery on a Police Officer ("ABPO"), Va. Code § 18.2-57(C), and sentenced to five years' imprisonment with three years and seven months suspended. As a result of his conviction, Immigration and Customs Enforcement ("ICE") initiated removal proceedings. ICE charged Ramirez-Mejia with removability under the Immigration and Nationality Act ("INA") § 1227(a)(2)(A)(iii), which provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). Ramirez-Mejia, by and through counsel, moved to terminate the proceeding based, in part, on the classification of ABPO as an "aggravated felony" within the meaning of the statute.
On July 3, 2006, the Immigration Judge ("IJ") found Virginia's ABPO statute is an "aggravated felony" and ordered Ramirez-Mejia removed to Nicaragua. Although Ramirez-Mejia had notice of the thirty-day time period within which to appeal the IJ's decision to the Board of Immigration Appeals ("BIA"), he declined to do so because his counsel advised him that an appeal would be futile. On July 12, his counsel faxed a copy of the IJ's decision to the Department of Homeland Security along with the instruction, "Deport my client please."
At some point, Ramirez-Mejia reentered the United States because in 2015 he was arrested for possession of a controlled substance and transferred to ICE custody. A grand jury subsequently returned an indictment charging him with unlawful reentry of a removed alien, in violation of 8 U.S.C. § 1326(a). Ramirez-Mejia now moves to dismiss the indictment on the ground that the underlying deportation order cannot withstand scrutiny.
II. Legal Framework
A. Collateral Attack on a Deportation Order Under $ 1326(d)
Section 1326(a) of the IN A "forbids an alien who once was deported to return to the United States without special permission." Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998). In United States v. Mendoza-Lopez, the Supreme Court held that an alien prosecuted under § 1326 "may assert in that criminal proceeding the invalidity of the underlying deportation order." 481 U.S. 828, 830, 838-39 (1987). Congress subsequently amended § 1326 to allow collateral attacks under certain, limited circumstances. It provides:
In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien demonstrates that-
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
§ 1326(d). Because the statute joins the requirements in the conjunctive, "a defendant must satisfy all three in order to prevail." United States v. El-Shami, 434 F.3d 659, 663 (4th Cir. 2005). If a defendant is successful, the court ...