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United States v. Romero-Caceres

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

November 19, 2018

UNITED STATES OF AMERICA
v.
OMAR ENRIQUE ROMERO-CACERES

          MEMORANDUM OPINION

          T.S. ELLIS III UNITED STATES DISTRICT JUDGE.

         Defendant, 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.

         For the reasons that follow, defendant's motion to dismiss the Indictment must be denied.

         I.

         Defendant 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.

         On May 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.

         The May 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.

         On June 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."

         At the 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 United States.

         Thereafter, 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.[1] 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.

         At some 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.

         In the 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.

         II.

         As an 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.

         The 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 defendant demonstrates:

(1) the [defendant] 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 [defendant] of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.

         Thus, 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. Id.

         A.

         An 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 663.

         The 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").[2] 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 ...


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