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United States v. Silva

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

May 14, 2018

UNITED STATES OF AMERICA
v.
OMAR VILLARREAL SILVA, Defendant

          MEMORANDUM OPINION

          M. HANNAH LAUCK JUDGE

         This matter comes before the Court on Defendant Omar Villarreal Silva's Second Motion to Dismiss the Indictment (the "Second Motion to Dismiss"). (ECF No. 28.) The United States responded, (ECF No. 31), and Villarreal replied, (ECF No. 32). On May 11, 2018, the Court heard argument on the Second Motion to Dismiss.[1] The Motion to Dismiss is ripe for disposition. For the reasons discussed below, the Court will deny the Second Motion to Dismiss.

         I. Factual and Procedural Background

         Villarreal, a citizen of Mexico, first came to the United States in 1996 at the age of seventeen. He has six siblings, three of whom currently live in the United States. Villarreal also has three children, ages sixteen, twelve, and three. All his children were born in the United States to Villarreal and his partner, and they live in Hopewell, Virginia. While in the United States, Villarreal worked in construction and sent money to his parents in Mexico every month.

         Villarreal has twice been removed from the United States under orders of removal: first on September 1, 2014, and later on November 20, 2014. He also has been apprehended by United States Border Patrol and allowed to voluntarily return to Mexico five times: twice in 1998, and three times in 1999. Villarreal's criminal history currently includes nine criminal convictions within the United States-six misdemeanor convictions and three felony convictions.

         In February of 2014, Chesterfield County, Virginia, police officers arrested Villarreal for "DWI, Third Offense, " and Villarreal was found guilty. Villarreal's arrest and conviction prompted the police to notify immigration officials, who interviewed Villarreal, determined that he was removable, and lodged a detainer. On September 2, 2014, Villarreal appeared before an Immigration Judge in Arlington, Virginia, who ordered Villarreal removed from the United States (the "September 2, 2014 Order of Removal"). On September 11, 2014, immigration officials physically removed Villarreal from the country and returned him to Mexico.

         On November 20, 2014, Villarreal attempted to re-enter the United States by presenting a passport that was not his at the El Paso, Texas, Port of Entry. After determining that the passport did not belong to Villarreal, immigration officials placed him into expedited removal proceedings and issued an Order of Removal (the "November 20, 2014 Order of Removal").[2]The November 20, 2014 Order of Removal states that Villarreal was deemed removable pursuant to 8 U.S.C. § 1225(b)(1)[3] (the "Expedited Removal Statute") because immigration officials determined that he was inadmissible under sections 212(a)(6)(C)(ii), [4] (the "Fraudulent Entry Statute"), and (7)(A)(i)(I), [5] (the "No Entry Document Statute"), of the Immigration and Nationality Act. The November 20, 2014 Order of Removal states that on November 20, 2014, Villarreal "falsely represented [himself] to be a United States citizen ... [t]o gain entry into the United States, " in violation of the Fraudulent Entry Statute, and that he also violated the No Entry Document Statute because he was "an immigrant not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Immigration and Nationality Act." (Second Mot. Dismiss, Ex. 1 at 10, ECF No. 28-1.)

         The next day, on November 21, 2014, the United States Attorney's Office in the Western District of Texas instituted a criminal prosecution of Villarreal for his attempted reentry. On December 17, 2014, a grand jury returned a two-count indictment charging Villarreal with Illegal Reentry, in violation of 8 U.S.C. § 1326(a), [6] and Improper Use of Another's Passport, in violation of 18 U.S.C. § 1544. Villarreal pleaded guilty to both counts and was sentenced to fifteen months' imprisonment. On December 23, 2016, after he had served his sentence, immigration officials physically removed Villarreal from the country and returned him to Mexico.

         On August 6, 2017, Villarreal was again found in the United States when Chesterfield County police officers arrested him for "Obstruct Justice: Without Force, " "DWI: Previous Felon, " and "Driving While Suspended." The next day, officials in the Chesterfield County Jail notified Richmond immigration authorities that Villarreal was in their custody. On September 20, 2017, a grand jury in the Eastern District of Virginia returned the instant one-count Indictment, again charging Villarreal with a violation of 8 U.S.C. § 1326(a), the Criminal Illegal Reentry Statute.[7]

         On January 5, 2018, Villarreal filed his first motion to dismiss (the "First Motion to Dismiss"). In the First Motion to Dismiss, Villarreal sought to collaterally attack both the September 2, 2014 Order of Removal and the November 20, 2014 Order of Removal, arguing that he was deprived of due process in both of those deportation proceedings. On February 15, 2018, the Court heard argument on the First Motion to Dismiss. Because the parties' briefing on the First Motion to Dismiss largely argued the merits as to success under 8 U.S.C. § 1326(d) (the "Collateral Attack Subsection"), [8] the Court, identifying a threshold issue which neither party had squarely addressed, asked the parties to address the relevance of 8 U.S.C. § 1225, [9] (the "Jurisdiction-Stripping Statute"), to Villarreal's First Motion to Dismiss. It was not until questioning by the Court that it became apparent that Villarreal intended to challenge the constitutionality of that provision. Holding that Villarreal had "not adequately raised [the] constitutional challenge ... in a way that the Court can decide, " the Court denied the First Motion to Dismiss without prejudice. (Feb. 23, 2018 Mem. O. 7, ECF No. 27.) The Court allowed Villarreal to file a second motion to dismiss, which he timely did.

         Villarreal argues in the Second Motion to Dismiss that the Court must dismiss the Indictment because neither the September 2, 2014 Order of Removal nor the November 20, 2014 Order of Removal constitute valid orders of removal on which a prosecution for Illegal Reentry in violation of 8 U.S.C. § 1326(a) may be premised. Subsequent briefing and argument from both parties established that the November 20, 2014 Order of Removal is the only removal challenged at bar.[10] In the Second Motion to Dismiss, Villarreal finally presents his constitutional challenge. Villarreal argues that either the Jurisdiction-Stripping Statute is unconstitutional when applied in context of a prosecution under the Criminal Illegal Reentry Statute, or Congress intended that prosecutions under the Criminal Illegal Reentry Statute could not be premised on expedited removals. The United States has responded, and Villarreal has replied. The constitutional question is therefore squarely before the Court.

         The Court finds that 8 U.S.C. § 1225(b)(1)(D), the Jurisdiction-Stripping Statute, is unconstitutional to the extent it prohibits, in a subsequent prosecution under 8 U.S.C. § 1326(a), the Criminal Illegal Reentry Statute, "some meaningful review" of an alien's claim that the underlying deportation proceeding, which constitutes an element of the criminal charge, was "fundamentally unfair." United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987). However, because Villarreal cannot establish that the deportation proceeding underlying the November 20, 2014 Order of Removal was fundamentally unfair, the Court will deny Villarreal's Second Motion to Dismiss.

         II.

         The Jurisdiction-Stripping Statute is Unconstitutional to the Extent it Prohibits Some Meaningful Review of a Deportation Proceeding on Which a Subsequent Criminal Prosecution is Based

         Mendoza-Lopez requires that, "where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding." 481 U.S. at 837-38. Although the Collateral Attack Subsection provides for judicial review of some orders of removal in the context of prosecutions based on the Criminal Illegal Reentry Statute, the Jurisdiction-Stripping Statute, by its plain language, prohibits judicial review of the validity of an expedited removal, such as the November 20, 2014 Order of Removal, in the context of a prosecution under the Criminal Illegal Reentry Statute. 8 U.S.C. § 1225(b)(1)(D). The Jurisdiction-Stripping Statute also expressly provides that the Criminal Illegal Reentry Statute applies to aliens who were removed pursuant to the Expedited Removal Statute. But when an alien is prosecuted under the Criminal Illegal Reentry Statute after being removed pursuant to an expedited removal order, that removal order constitutes an element of the subsequent criminal charge, which-through the combined operation of the Expedited Removal Statute and the Jurisdiction-Stripping Statute-cannot be reviewed.

         The Court therefore must conclude that the Jurisdiction-Stripping Statute, 8 U.S.C. § 1225(b)(1)(D), is unconstitutional to the extent it prohibits "some meaningful review" in a prosecution under the Criminal Illegal Reentry Statute of an alien's claim that the underlying deportation proceeding was "fundamentally unfair." Mendoza-Lopez, 481 U.S. at 838-39.

         A. Mendoza-Lopez Requires Some Meaningful Review When a Subsequent Criminal Prosecution is Based on an Earlier Deportation Proceeding

         In Mendoza-Lopez, two aliens were arrested in Nebraska, subjected to group deportation proceedings, and ordered deported to Mexico. 481 U.S. at 830. Two months later, after being found again in Nebraska, both aliens were arrested and charged with violations of the Criminal Illegal Reentry Statute. Id. Both moved to dismiss their indictments, arguing that they had been "inadequately informed ... of their right to counsel" at the group deportation proceedings, and that their unknowing waivers of the right to apply for suspension of deportation and appeal had been accepted, in violation of their due process rights. Id. at 831-32. The district court accepted the defendants' arguments and dismissed their indictments. Id. The circuit court affirmed. Id.

         On review, the Supreme Court of the United States first held that the language of the Criminal Illegal Reentry Statute at the time did not allow an alien to collaterally attack a previous deportation order in the context of a criminal prosecution under that statute. Id. at 835. The Supreme Court also held that Congress intended not to permit such a collateral challenge.[11] Id. But the Supreme Court held that its inquiry could not end there because "[i]f the statute envisions that a court may impose a criminal penalty for reentry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with the constitutional requirement of due process." Id. at 837 (second emphasis added). The Mendoza-Lopez Court further held that, regardless of congressional intent or the plain language of the statute, "where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding." Id. at 837-38.

         The Supreme Court did not challenge the ability of Congress to determine the extent of review--judicial or administrative-provided to aliens in the underlying administrative deportation proceedings. Rather, the Court held that "[p]ersons charged with crime are entitled to have the factual and legal determinations upon which convictions are based subjected to the scrutiny of an impartial judicial officer." Id. at 841 (emphasis added). For this reason, "[depriving an alien of the right to have the disposition in a deportation hearing reviewed in a judicial forum requires, at a minimum, that review be made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense." Id. at 839 (footnote omitted).

         Based on these constitutional principles, the Mendoza-Lopez Court held that it could review the aliens' challenge to the underlying deportation proceedings, despite clear congressional intent that no such review occur. Id. at 841-42. Because the government had asked the Court to assume that the aliens' "deportation hearing was 'fundamentally unfair, '" the Court ruled that the United States could not rely on the prior deportation orders as "reliable proof of an element of a criminal offense." Id. at 839-40. Courts have since interpreted Mendoza-Lopez as standing for the requirement that an alien is "entitled, as a matter of due process, to bring a collateral challenge to a fundamentally unfair deportation proceeding, provided that the alien had been effectively deprived of his [or her] right to judicial review." United States v. Charleswell, 173 F.3d 425, at *1 (4th Cir. 1999) (unpublished table decision) (citing Mendoza-Lopez, 481 U.S. at 838-39); see also United States v. Barajas-Alvarado, 655 F.3d 1077, 1083 (9th Cir. 2011) (“Mendoza-Lopez makes clear that the alien is entitled to judicial review of a claim that the prior proceeding was 'fundamentally unfair' and thus cannot be used as a predicate for a criminal case, where the prior proceeding was not previously subjected to judicial review." (quoting Mendoza-Lopez, 481 U.S. at 839)).

         B. The Collateral Attack Subsection Provides for Review in the Context of Most Prosecutions Under the Criminal Illegal Reentry Statute

         The Collateral Attack Subsection, 8 U.S.C. § 1326(d) codifies the Mendoza-Lopez principle that due process entitles a defendant to some meaningful review of a deportation order on which a subsequent prosecution under the Criminal Illegal Reentry Statute is premised. See, e.g., Moreno-Tapia, 848 F.3d at 165-66 (discussing Mendoza-Lopez's holding that defendants are entitled to collaterally attack their deportation order in a subsequent prosecution for illegal reentry, and stating that "Congress responded by codifying the principle of Mendoza-Lopez in 8 U.S.C. § 1326(d)").

         Section 1326(d) limits collateral attacks in the context of a prosecution under the Criminal Illegal Reentry Statute by requiring the alien to meet three criteria. 8 U.S.C. § 1326(d). The alien must establish that: "(1) [he or she] 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). The defendant bears the burden of proof and must satisfy all three requirements for a collateral attack to prevail. See, e.g., United States v. Ortiz, 488 F. App'x. 717, 717-18 (4th Cir. 2012) ("A defendant must satisfy all three of the above requirements to prevail." (citing United States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003), abrogated on other grounds by Lopez v. Gonzales, 549 U.S. 47 (2006))). If the defendant meets all three requirements, "the illegal reentry charge must be dismissed as a matter of law." United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005).

         C. The Jurisdiction-Stripping Statute Divests District Courts of the Power to Hear Collateral Attacks of Expedited Orders of Removal in a Subsequent Prosecution Under the Criminal Illegal Reentry Statute

         At the same time, 8 U.S.C. § 1225(b)(1)(D), the Jurisdiction-Stripping Statute deprives courts of jurisdiction to consider collateral attacks of certain types of removal orders in the context of prosecutions under the Criminal Illegal Reentry Statute. The Jurisdiction-Stripping Statute provides:

In any action brought against an alien under section 1325(a) of this title or section 1326[, the Criminal Illegal Reentry Statute, ] of this title, the court shall not have jurisdiction to hear any claim attacking the validity of an order of removal entered under subparagraph (A)(i)[, the Expedited Removal Statute, ] or (B)(iii).

8 U.S.C. § 1225(b)(1)(D) (emphasis added). One of the subparagraphs referenced, 8 U.S.C. § 1225(b)(1)(A)(i), the Expedited Removal Statute, provides:

If an immigration officer determines that an alien . . . who is arriving in the United States ... is inadmissible under [the "Fraudulent Entry Statute] or [the No Entry Document Statute], the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.

8 U.S.C. § 1225(b)(A)(1)(i) (emphasis added). Unless an alien is a lawful permanent resident, indicates an intention to apply for asylum, or expresses a fear of persecution, [12] the Expedited Removal Statute expressly prohibits any "further hearing or review" before the alien is removed from the United States. Id.

         Taken together, the Jurisdiction-Stripping Statute and the Expedited Removal Statute provide that, during a prosecution under the Criminal Illegal Reentry Statute, no court has jurisdiction to review-in the context of a collateral attack or otherwise-orders of removal issued pursuant to the Expedited Removal Statute when the alien was found inadmissible under either the Fraudulent Entry Statute or the No Entry Document Statute. This is precisely the circumstance Villarreal brings to this Court.

         1. Well-Established Principles of Statutory Interpretation Guide the Court's Analysis

         Under well-settled principles of statutory construction, the Court's analysis must "begin, as always, with the language of the statutory text, " and "[i]n the absence of a definition from Congress, [the Court] accord[s] words in a statute their ordinary, contemporary, common meaning." United States v. Midgett, 198 F.3d 143, 145-46 (4th Cir. 1999) (internal citation and quotation marks omitted). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). When "the terms of a statute are unambiguous on their face, or in light of ordinary principles of statutory interpretation, " judicial inquiry normally ends. United States v. Morison, 844 F.2d 1057, 1064 (4th Cir. 1988).

         2. The Court Faces an Issue of First Impression Within the Fourth Circuit

         Neither party identifies any opinion from either the United States Court of Appeals for the Fourth Circuit or any district court within the Fourth Circuit addressing the relationship between Mendoza-Lopez and the Jurisdiction-Stripping Statute in the context of a prosecution under the Criminal Illegal Reentry Statute. Nor does the Court see such a case. That said, the United States asserts that "[t]he Fourth Circuit has addressed the statutory limitation of jurisdiction question in a highly analogous case concerning a limitation on an appeal right." (Resp. Second Mot. Dismiss 11, ECF No. 31.) In support of this statement, the United States cites to Hall v. I.N.S., 167 F.3d 852, 857 (4th Cir. 1999), [13] stating that, in Hall, "the Fourth Circuit rejected a constitutional challenge to the restriction on the appellate court's jurisdiction." (Id.)

         The United States' citation to Hall as a "highly analogous case" illuminates its failure to recognize that the constitutional question before the Court is the due process to which criminal defendants are entitled when prosecuted under the Criminal Illegal Reentry Statute. More specifically, Mendoza-Lopez evaluates the due process requirements for prosecuting an alien under the Criminal Illegal Reentry Statute. When such a prosecution relies on a previous expedited removal, as does the prosecution at bar, an element of the prosecution rests on a deportation proceeding that lacked any judicial review whatsoever. The United States' focus on the due process required in the underlying deportation proceeding rather than the due process required in the criminal prosecution at bar is misplaced.

         For the same reason, the United States' argument that "[t]he majority of courts' holdings, barring habeas jurisdiction to review the validity of expedited removal orders, apply with force here" fails. (Resp. Second Mot. Dismiss 9 (emphasis added).) In the unique context before the Court-in which the United States seeks to impose a criminal sanction based on a "determination made in an administrative proceeding, "-the Constitution requires "some meaningful review of the administrative proceeding, " Mendoza-Lopez, 481 U.S. at 837-38, because "[p]ersons charged with crime[-unlike those seeking habeas relief-]are entitled to have the factual and legal determinations upon which convictions are based subjected to the scrutiny of an impartial judicial officer, " id. at 841 (emphasis added). Cf. Smith v. Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002) (reviewing a habeas petition alleging a due process violation in the course of deportation proceedings, and holding that Mendoza-Lopez does not govern because "[i]n Mendoza-Lopez, the question before the court was whether a defendant who was being criminally prosecuted for illegally reentering after ...


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