United States District Court, E.D. Virginia, Alexandria Division
ELLIS III UNITED STATES DISTRICT JUDGE.
a native and citizen of Honduras, is charged in Indictment
with one count of illegally re-entering the United States
after having been previously removed and deported subsequent
to a felony conviction, in violation of 8 U.S.C. §
1326(a) and (b)(1). Among the pretrial motions filed by
defendant is a motion to dismiss the Indictment on the ground
that Pereira v. Sessions, 138 S.Ct. 2105 (2018),
compels the conclusion that the immigration court lacked
jurisdiction to order defendant's prior removal.
reasons that follow, defendant's motion to dismiss the
Indictment must be denied.
initially entered the United States in Miami, Florida in
January 2003 with a B-2 visitor visa that permitted defendant
to remain in the United States for only six months. Defendant
overstayed this period by approximately two and one-half
years. In February 2006, Virginia State Police arrested
defendant for possession of fraudulent identity documents in
Fairfax County, Virginia. During the same month, defendant
was charged in the Eastern District of Virginia with Identity
Fraud, in violation of 18 U.S.C. §§ 1028(a)(7) and
(c)(3). Defendant pled guilty to this charge on October 19,
2006 and was thereafter sentenced to twelve months
imprisonment and two years of supervised release.
22, 2007, Immigration and Customs Enforcement
("ICE") gave defendant a Notice to Appear
("May 2007 Notice"), requiring defendant to appear
before an immigration judge to respond to the allegation that
defendant had overstayed his B-2 visa without authorization.
The May 2007 Notice notified defendant of this allegation and
that this allegation, if true, warranted defendant's
removal or deportation from the United States. Additionally,
the May 2007 Notice stated:
Representation: If you so choose, you may be represented in
the proceeding, at no expense to the Government, by an
attorney or other individual authorized and qualified to
represent persons before the Executive Office for Immigration
Review, pursuant to 8 CFR 3.16. Unless you so request, no
hearing will be scheduled earlier than ten days from the date
of this notice, to allow you sufficient time to secure
counsel. A list of qualified attorneys and organization who
may be available to represent you at no cost will be provided
with this notice.
2007 Notice stated that the date and time of the hearing
would be set later. No. list of available pro bono legal
services providers was attached to the May 2007 Notice.
7, 2007, ICE moved defendant from Arlington, Virginia to
Harlingen, Texas. On June 12, 2007, the immigration court
sent a Notice of Hearing in Removal Proceedings ("June
2007 Notice") to defendant in the Willacy County
Detention Center in Texas. This June 2007 Notice advised
defendant of the date, time and location of the removal
hearing and stated: "You may be represented in these
proceedings, at no expense to the Government, by an attorney
or other individual who is authorized and qualified to
represent persons before an Immigration Court."
scheduled and noticed hearing on June 15, 2007, an
immigration judge ordered defendant removed from the United
States to Honduras (the "June 2007 Removal Order").
Defendant, who was present for the hearing and proceeded pro
se, waived his appeal of the June 2007 Removal
Order. On July 18, 2007, ICE then removed defendant from the
at some unknown time, defendant illegally re-entered the
United States. Then, on August 3, 2012, defendant was found
in the United States and was charged with Illegal Re- entry
after a Conviction for a Felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(1). On September 2, 2012, ICE
reinstated defendant's June 2007 Removal
Order. On January 11, 2013, defendant pled guilty
to the illegal re-entry charge, and on April 12, 2013,
pursuant to the June 2007 Removal Order, ICE once again
removed defendant from the United States to Honduras.
unknown time after this removal, defendant once again
re-entered the United States illegally. Thereafter, on July
16, 2018, Virginia state police arrested defendant in Fairfax
County, Virginia for Felony Hit and Run with Injury in
violation of Va. Code § 46.2-894, Drunk in Public in
violation of Va. Code § 18.2-388, and Reckless Driving
in violation of Va. Code § 46.2-852. These charges
remain pending. On or about July 29, 2018, ICE placed a
detainer on defendant, who then fell to the ICE detainer on
or about August 22, 2018.
motion to dismiss, defendant argues that because the May 2007
Notice failed to include the date and time of defendant's
removal proceeding, the immigration court lacked jurisdiction
to order defendant's June 2007 removal and hence
defendant claims that the June 2007 Removal Order is invalid.
Accordingly, defendant argues, the Indictment must be
dismissed because defendant has not re-entered the United
States subsequent to the entry of a valid order removing
defendant from the country. See United States v.
Moreno-Tapia, 848 F.3d 162, 165 (4th Cir. 2017)
("To win a conviction under § 1326, the government
must prove, as an element of the offense, the defendant's
prior removal or deportation."). Because defendant is
barred from collaterally attacking the June 2007 Removal
Order and related proceeding and because, alternatively, the
immigration court did have jurisdiction to order
defendant's June 2007 removal, defendant's motion to
dismiss the Indictment must be denied.
initial matter, defendant's motion must be denied
because, under 8 U.S.C. § 1326(d), defendant is barred
from challenging the June 2007 removal proceeding.
Supreme Court in United States v. Mendoza-Lopez, 481
U.S. 828, 838-839 (1987), recognized that an alien charged
with illegal re-entry, in violation of 8 U.S.C. § 1326,
has a due process right to meaningful judicial review of the
underlying removal proceeding. Thus, "where the defects
in [the removal] proceeding foreclose[d] judicial review of
that proceeding," the alien must have access to
collateral judicial review of the alien's removal order
in the alien's subsequent criminal proceeding under
§ 1326. Id. Consistent with
Mendoza-Lopez, Congress enacted 8 U.S.C. §
1326(d), which provides that an alien charged with illegal
re-entry may, in a criminal proceeding under § 1326,
challenge the validity of the underlying removal order if the
(1) the [defendant] exhausted any administrative remedies
that may have been available to seek relief against the
(2) the deportation proceedings at which the order was issued
improperly deprived the [defendant] of the opportunity for
judicial review; and
(3) the entry of the order was fundamentally unfair.
Congress has made clear that an alien who demonstrates these
three prerequisites has been denied meaningful judicial
review in the initial removal proceeding and thus has the
right to attack collaterally the prior removal order and
related proceeding under § 1326(d). Importantly, the
three prerequisites are listed in the conjunctive, and thus,
as the Fourth Circuit has recognized, the defendant must
satisfy all three prerequisites in order to be able to
challenge collaterally the underlying removal order.
United States v. El Shami, 434 F.3d 659, 663 (4th
Cir. 2005). Therefore, defendant here may not challenge the
June 2007 Removal Order unless he meets all three §
1326(d) requirements. But if defendant meets all three
requirements, the Indictment's illegal re-entry charge
under § 1326(a) and (b)(1) must be dismissed.
alien fails to exhaust his administrative remedies, and thus
fails to satisfy the first § 1326(d) requirement, if the
alien knowingly waived the right to appeal an immigration
judge's order of deportation in the prior deportation
proceedings. United States v. Chavez-Alonso, 431
F.3d 726, 728 (10th Cir. 2005); United States v.
Johnson, 391 F.3d 67, 77 (2d Cir. 2004). On the other
hand, if the alien failed to appeal the immigration
judge's order because the government did not give the
alien proper notice of the removal hearing, the alien has met
the exhaustion requirement. El Shami, 434 F.3d at
record in this case reflects that defendant knowingly chose
to waive his right to appeal the June 2007 Removal Order to
the Board of Immigration Appeals
("BIA"). Additionally, defendant does not contend
that he lacked notice of the hearing or otherwise unknowingly
waived his right to appeal. Instead, the record demonstrates
that defendant was fully aware of and attended the June 2007
proceeding. And, as explained more fully, infra, the
government gave defendant proper notice of the June 2007
hearing through the May 2007 Notice and the June 2007 Notice
sent to defendant, which together informed defendant of the
time, place, and date of the hearing. Thus, defendant, by