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United States v. Hernandez

United States District Court, E.D. Virginia, Alexandria Division

June 23, 2016




         This matter came before the Court for bench trial on the Government’s charge of one count of illegal entry after removal by Defendant Gabriel Aguilar Hernandez (“Defendant” or “Hernandez”) in violation of 8 U.S.C. § 1326. A bench trial was held before this Court on December 21, 2015. The matter was then stayed pending resolution of Welch v. United States, 136 S.Ct. 1257 (2016) for guidance on the retroactivity of the Supreme Court’s previous holding in Johnson v. United States, 135 S.Ct. 2551 (2015). Welch has subsequently been decided and the parties have rested on their previously submitted proposed findings of fact and law. Having carefully considered the evidence presented at trial and the parties’ proposed findings of fact and conclusions of law, the Court finds Defendant guilty beyond a reasonable doubt of one count of illegal reentry after removal in violation of 8 U.S.C. § 1326.

         I. Background

         The parties have stipulated that Defendant is an alien, he was previously removed from the United States, he was found thereafter within the Eastern District of Virginia after reentering the United States Voluntarily, and he did not have permission from the Attorney General or the Secretary of Homeland Security to apply for permission to reenter. (Gov. Exs. 1A-1D.) Defendant is an alien from Guatemala who had previously entered the United States illegally and was ordered removed from the United States on June 29, 2006. (Gov. Exs. 5B1, 5C1.) Defendant’s 2006 removal proceedings took place on an expedited basis, without a hearing before an immigration judge, because immigration authorities at the Department of Homeland Security, U.S. Immigration and Customs Enforcement (“ICE”) determined that Defendant had previously been convicted of an aggravated felony within the meaning of 8 U.S.C. § 1227(a)(2)(A)(iii). (Tr. 29:7-9.) Specifically, ICE officials determined that in 2004, Hernandez had been convicted on charges of felony assault of a police officer in violation of Va. Code § 18.2-57 in the Arlington County Circuit Court. (Tr. 29:20-30:10; Ex. 4A3.)

         On March 30, 2006, Gerald White, a deportation officer for ICE, (“Officer White”) sent Hernandez a Notice of Intent to Issue a Final Administrative Removal Order (“the Notice”). (Tr. 35:25-36:6.) The Notice contained a list of the rights which Hernandez was afforded in connection with his expedited removal proceedings. (Gov. Ex. 5B1.) These included the right to be represented by counsel, the right to request an extension of time to respond to the Notice, the right to rebut the charge, the right to request an opportunity to review the government’s evidence, and the right to request withholding of removal based upon any asylum claim. (Id.) Additionally, the Notice informed Hernandez that he could seek judicial review of any final administrative order by filing a petition for review within 14 calendar days after the date that such final order was issued. (Id.) Finally, the Notice informed Hernandez that he could preemptively waive any such appeal by personally stating, in writing, his desire not to appeal before any final order was issued. (Id.)

         At trial, Officer White testified that ICE practice and policy was to provide the Notice in both English and Spanish. (Tr. 36:11-37:22.) Per the instructions in the Notice, Hernandez expressed his desire to contest the removal and submitted a letter to ICE officials in support of his rebuttal (“Defendant’s Letter”). (Gov. Ex. 5B3.) Defendant’s Letter detailed the circumstances of his prior conviction, explained that he believed the he was erroneously convicted, and expressed his desire to remain in America because of a lack of work in his home country. (Tr. 39:15-20; Gov. Ex. 5B3.) Defendant’s Letter was handwritten in English. (Gov. Ex. 5B3.) ICE officials reviewed Defendant’s Letter, found no legal basis to withhold his removal, and issued a final administrative order of removal on June 29, 2006. (Tr. 42:14-15; Gov. Ex. 5C1.) The Final Administrative Order was delivered to Hernandez in English on July 6, 2006 by personal service. (Tr. 43:12-23.) At that time, the ICE officer serving the Final Administrative Order on Hernandez checked a box on the order indicating that the petition for review was being “[w]aived by respondent.” (Ex. 5C1; Tr. 44:10-16; 55:25-56:11.) Hernandez never filed a petition for judicial review.

         Hernandez was warned that as a result of his removal, he would need to obtain permission from the Attorney General to reapply for admission to the United States. (Ex. 5C2.) Hernandez illegally reentered the United States in or about October 2011. (Ex. 3A3.) Hernandez was subsequently discovered by immigration officials in or about September 2015 after his arrest on a local charge in Prince William County. (Tr. 63:5-10.) Hernandez waived trial by jury and requested a bench trial. (Def.’s Waiver of Jury Trial [Dkt. 14].) The Government consented and the Court approved. The sole issue at trial was whether Hernandez could succeed with a collateral attack on his underlying removal order as allowed by 8 U.S.C. §1326(d).

         After a bench trial on January 24, 2016, the Court determined that prudence dictated withholding judgment on Defendant’s collateral attack until several cases pending before the Supreme Court and the Fourth Circuit addressing the application of the Supreme Court’s recent holding in Johnson were resolved. Those cases have been decided, and the Court will now address Defendant’s collateral attack in light of the recent guidance it has received from the Supreme Court and the Fourth Circuit.

         II. Legal Standard

         8 U.S.C. § 1326(d) allows an alien to collaterally attack the validity of an underlying deportation order if he or she can demonstrate 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.

8 U.S.C. § 1326(d). Because the statute is written in the conjunctive, the defendant must satisfy each of these three requirements in order to succeed with a collateral attack on the underlying deportation order. United States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003), abrogated on other grounds by Lopez v. Gonzalez, 549 U.S. 47 (2006); United States v. Ortiz, 488 F. App’x 717, 717-18 (4th Cir. 2012).

         The Federal Rules of Criminal Procedure require that “[i]n a case tried without a jury, the court must state its specific findings of fact in open court or in a written decision or opinion.” Fed. R. Crim. P. 23(c). Accordingly, the Court first states its specific findings of fact before turning to its conclusions of law.

         III. ...

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