United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
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.
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.)
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.)
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
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).
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.
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
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).
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.