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United States v. Guzman-Velasquez

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

October 20, 2017



          M. Hannah Lauck, United States District Judge

         This matter comes before the Court on Defendant Jose Benjamin Guzman Velasquez's ("Guzman") Motion to Dismiss the Indictment, (the "Motion to Dismiss").[1] (ECF No. 12.) The United States responded to the Motion to Dismiss, [2] (ECF No. 15), and Guzman replied, (ECF No. 16). The Court held a hearing on the Motion to Dismiss on October 11, 2017. (ECF No. 17.) At the conclusion of the hearing, the Court denied the Motion to Dismiss, stating it would explain the rationale behind the denial in a forthcoming memorandum opinion. This Memorandum Opinion articulates the reasons that the Court denied Guzman's Motion to Dismiss. (ECF No. 12.)

         I. Procedural Background

         On December 6, 2016, the United States filed an Indictment against Guzman alleging one count: Illegal Reentry, in violation of 8 U.S.C. § 1326(a).[3] (ECF No. 1.) On May 31, 2017, Guzman was arraigned and entered a plea of not guilty, and the Court set a jury trial for August 2, 2017. (ECF No. 8.) On July 25, 2017, the parties filed a Consent Motion to Continue Jury Trial Beyond the Speedy Trial Act Cut-Off Date.[4] (ECF No. 9.) The Court held a hearing on the motion on July 28, 2017, orally granted it, and reset the jury trial for September 12, 2017. (ECF No. 10).

         On September 5, 2017, Guzman filed the Motion to Dismiss, arguing that the Court should dismiss the indictment because Guzman's prior removal from the United States was "constitutionally defective" and therefore could not serve as a predicate prosecution under 8 U.S.C. § 1326(a). (Mot. Dismiss 1.)

         II. Factual Background

         Jose Benjamin Guzman Velasquez was born in El Salvador and is an El Salvadoran citizen. On December 31, 1998, at age 17, Guzman entered the United States over the U.S.Mexico border by wading across the Rio Grande River. That same day, U.S. Border Patrol apprehended Guzman in Texas and initiated removal proceedings. In February 1999, approximately one month later, immigration officials released Guzman into the custody of an aunt who lived in California. The immigration court transferred venue of Guzman's removal proceedings to Los Angeles. Those proceedings ended approximately one year after his capture, in December 1999, when an immigration judge granted Guzman an order of voluntary departure.

         The order of voluntary departure required Guzman to leave the United States of his own accord by March 30, 2000. If Guzman did not leave the country by March 30, 2000, the order of voluntary departure, by its own terms, immediately converted into an Order for Removal. Guzman did not voluntarily depart the United States on or before March 30, 2000. The March 2000 Order of Removal constitutes the only Order of Removal brought against Guzman.

         In 2001, after a devastating earthquake in El Salvador, the Attorney General made Temporary Protected Status ("TPS")[5] available to El Salvadoran citizens. 66 Fed. Reg. 47, 14214 (Mar. 9, 2001). To qualify, El Salvadoran applicants needed to show '"continuous!] physical[] presen[ce]' in the United States since March 9, 2001, and [must demonstrate] 'continuous!] residence]* in the United States since February 13, 2001." Id.

         On May 28, 2002, Guzman, through a retained attorney, applied for TPS with the United States Citizenship and Immigration Services ("USCIS"). (Stips. ¶ 2, ECF No. 18.)[6] Nearly a year later, on May 19, 2003, USCIS sent a letter to Guzman's attorney advising him of its intent to deny Guzman's TPS application because he had failed to provide sufficient proof that he had established a residence in the United States as of February 13, 2001, or that he had continuous presence in the United States since March 9, 2001. (Stips. ¶ 2; Stips. Ex. B, at 5.) The letter told Guzman that USCIS would "not make a final decision on [his] application for 30 days, " and listed examples of acceptable evidence or documents he might seek to submit. (Stips. Ex. B, at 5.) USCIS also included notice that, "[i]f your response is not received by this office within thirty (30) days, [USCIS] will conclude that the application is not approvable and your application will be denied." (Stips. Ex. B, at 5.) While some notations in Guzman's A-file suggest that his attorney sought additional time to respond to the May 19, 2003, letter, (see Stips. ¶ 3), neither Guzman nor his attorney responded to that letter.[7]

         Key to the motion at bar, Guzman offers a stipulation that, "[p]rior to the 2003 letter, " Guzman's A-file already contained what would have been acceptable documentation establishing residency and continuous presence for purposes of gaining temporary protected status.[8] (Stips. ¶ 3.) In his motion, Guzman highlights that USCIS failed to review the entire A-file when considering his TPS application. Guzman also emphasizes that his attorney did not tell USCIS about these documents or, perhaps worse, did not know they existed at all. The parties stipulated, without direct evidence from the (seemingly available) attorney himself, that Guzman's attorney "has no recollection of Mr. Guzman" or of representing him, and that the "attorney has destroyed any files and documentation" that would have related to Guzman's TPS application. (Stips. ¶ 4.)

         On April 5, 2004, USCIS denied Guzman's application for TPS in a letter sent to Guzman's immigration attorney. (Stips. ¶ 3; Stips. Ex. B, at 7.) Advising Guzman that no response to the May 2003 Notice of Intent to Deny had been placed in the record, the agency told Guzman that "the grounds for denial have not been overcome." (Stips. Ex. B, at 7.) The 2004 denial letter included a notice of the opportunity to appeal the decision and enclosed the I-290B form on which to do so. (Id.) The letter informed Guzman that any appeal had to be filed within thirty days, or the decision would be "final." (Id. at 8.)

         Nearly three years later, on or about August 2007, Guzman entered state custody for an alleged misdemeanor violation that was subsequently dismissed. (Stips. ¶ 5.) Despite the dismissal, a fingerprint match identifying Guzman as an alien with an outstanding Order of Removal resulted in notification being sent to Immigration and Customs Enforcement ("ICE") Law Enforcement Support Center ("LESC") of his whereabouts. Using a Form 1-205 Warrant of Removal/Deportation dated August 28, 2007, LESC placed a detainer on Guzman. (Stips. ¶ 5; Stips. Ex. C, at 1.) During the removal process, Guzman sought and received assistance from the El Salvadoran Consulate for travel documentation. (Stips. ¶ 5.)

         On September 21, 2007, Guzman was physically removed from the United States. An ICE agent placed Guzman on a commercial flight departing from Dulles International Airport. (Stips. ¶ 6.) "Guzman never appealed or administratively challenged the removal." (Stips. ¶ 7.)

         Guzman returned to the United States "sometime after September 21, 2007, without first obtaining the permission of the Attorney General or the Secretary of the Department of Homeland Security." (Stips. ¶ 8.) Guzman was convicted of three criminal offenses in Virginia after 2007: (1) a 2012 misdemeanor Driving While Intoxicated ("DWI") offense; (2) a 2016 misdemeanor DWI offense; and, (3), a 2016 felony DWI offense. (Stips. ¶ 10.)

         On October 1, 2016, a Grand Jury in the Eastern District of Virginia returned an Indictment for Guzman charging him with a violation of 8 U.S.C. § 1326(a). Guzman remained in state custody from some time in 2016 until he was turned over to immigration officials pursuant to an immigration detainer in May 2017. (Stips. ¶ 9.)

         III. Analysis: Motion to Dismiss

         A. Statutory Framework of 8 U.S.C. S 1326

         Broadly, 8 U.S.C. § 1326(a) makes it a crime for any alien "who has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding" to subsequently enter, attempt to enter, or at any time be found in the United States without advance permission from the Attorney General. Because a previous deportation order acts as an essential element of the Illegal Reentry offense, the Supreme Court of the United States has recognized that an alien can collaterally attack the constitutionality of the original deportation order in the later criminal proceeding. See United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987); United States v. ElShami, 434 F.3d 659, 663 (4th Cir. 2005). That is what Guzman attempts to do here.

         Section 1326(d) places a limitation on collateral attacks of "the validity of the [underlying] deportation order" or proceedings, however, by requiring the alien to meet three criteria. 8 U.S.C. § 1326(d). An alien seeking to challenge a previous deportation proceeding must establish 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). A defendant must satisfy all three requirements to prevail. United States v. Ortiz, 488 Fed.Appx.. 717, 717-18 (4th Cir. 2012). The defendant bears the burden of proof to establish the elements of a collateral attack under § 1326(d). See 8 U.S.C. § 1326(d) ("unless the alien demonstrates"); ElShami, 434 F.3d at 663 (stating that "the alien must demonstrate that" the three requirements of § 1326(d) have been met). If the defendant meets all three requirements, "the illegal reentry charge must be dismissed as a matter of law." El Shami, 434 F.3d at 663.

         B. The Parties Disagree as to What Deportation[9]Proceeding Guzman Challenges ...

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