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United States v. Rivera-Lopez

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

December 28, 2018

ARISTIDES RIVERA LOPEZ, a/k/a Aristides Lopez-Rivera, Defendant.


          Leonie M. Brinkema United States District Judge.

         Before the Court is defendant's motion to dismiss the indictment [Dkt No. 22]. For the reasons stated in open court and further developed in this Memorandum Opinion, defendant's motion has been denied.[1]


         Aristides Rivera Lopez, also known as Aristides Lopez Rivera ("defendant"), [2] is a citizen of El Salvador who in April 2004 entered the United States near Laredo, Texas without authorization or inspection. He was detained by U.S. Immigration and Customs Enforcement ("ICE") officers and on April 20, 2004 was personally served with a Notice to Appear (the "Notice") initiating removal proceedings under the Immigration and Nationality Act ("INA"). The Notice alleged that defendant was subject to removal and ordered him to appear before an immigration judge in Harlingen, Texas; however, in the blanks provided for the date and time of his hearing, the supervising patrol agent simply wrote "on a date to be set" and "at a time to be set." The Notice also provided a series of advisements, including that defendant could obtain counsel to represent him at the hearing; that he could present evidence, elicit testimony, or otherwise challenge the allegations in the Notice; that the immigration judge would advise him of any potential grounds for relief from removal; and that he would have the right to appeal any adverse decision by the immigration judge. It further advised defendant that he was required to maintain an up-to-date address with the immigration court, that notice of his hearing date would be sent to that address, and that failure to appear at the hearing could result in an order of deportation in absentia. Although the Notice was written in English, it contained a certificate of service indicating that defendant was read the notice in Spanish.[3] Defendant signed that certificate. He also requested an immediate hearing and waived the standard 10-day period designed to enable him to retain counsel.[4]

         On the same day he received the Notice, defendant was also presented with a prepared Stipulated Request for Order and Waiver of Hearing (the "Stipulation"). The Stipulation was written in both English and Spanish and was read to defendant in Spanish. It stated that although defendant had received a list of free legal service providers who could represent him in the removal proceeding, he did not "wish to be represented by an attorney" and instead had "elect[ed] to represent [him]self." Defendant signed the Stipulation, thereby acknowledging that he understood his procedural rights under the INA-including his rights to appear before an immigration judge, to examine and object to evidence against him, to present witnesses on his own behalf, and to demand that the government prove his removability-but had chosen to waive those rights so that "removal proceedings [could] be conducted solely by way of written record without a hearing." Further, in the Stipulation defendant admitted "that all the factual allegations contained in the [Notice were] true and correct as written"; that he was "deportable/inadmissible as charged"; and that he did not intend to seek "voluntary departure, asylum, ... family unity benefits, legalization benefits, cancellation of removal, naturalization, or any other possible relief or other benefits" under the INA. Finally, defendant affirmed that he understood signing the Stipulation would result in his removal from the United States; that he accepted such an order of removal; that he waived any appeal of that order; and that he accepted those consequences "voluntarily, knowingly, and intelligently, and without duress, force, or coercion."

         In addition to his civil immigration charge, defendant was charged with the misdemeanor of unlawful entry under 8 U.S.C. § 1325.[5] The criminal complaint alleged that defendant had entered the United States at a place other than as designated by immigration officers, specifying that he had attempted to evade inspection "by wading the Rio Grande River." On April 21, 2004-one day after he signed the Stipulation-he pleaded guilty to that misdemeanor charge and was sentenced to 30 days' imprisonment. The record shows that defendant was represented by a federal public defender in that criminal proceeding.

         On May 6, 2004, an immigration judge ordered defendant removed from the United States based on the Stipulation he had signed. He was deported to El Salvador a month and a half later. He returned to the United States at an unknown time and came to the attention of federal immigration authorities in July 2018 after being arrested and charged with misdemeanor assault. Immigration officials took defendant into custody after he was released on bail and have sought reinstatement of his April 2004 deportation order.[6] In addition, defendant was indicted for one count of the felony offense of illegal reentry after deportation under 8 U.S.C. § 1326.[7]

         Defendant moved to dismiss the indictment on two independent grounds. First, relying on Pereira v. Sessions, 138 S.Ct. 2105 (2018), he argued that because the Notice he received failed to specify the date and time of his removal hearing, the immigration judge was without jurisdiction to order him deported, and consequently the 2004 deportation order is void ab initio and cannot serve as the basis for this felony prosecution. Second, defendant argued that the lack of a date and time on the Notice rendered his resulting deportation fundamentally unfair and thus subject to collateral attack under 8 U.S.C. § 1326(d). As explained in open court and further developed below, although defendant's 2004 immigration proceeding was not without defects, those defects did not deprive the immigration judge of the power to order defendant's removal, and defendant's waiver of his rights in the Stipulation forecloses his § 1326(d) collateral attack.


         In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Supreme Court applied the principle "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," and held that where an immigration judge fails to inform a noncitizen[8] of his rights to counsel and to seek relief from removal, the resulting deportation order cannot form the basis of a subsequent prosecution for illegal reentry after deportation. Id. at 837-42. Crucial to the outcome in Mendoza-Lopez was what the Court described as "fundamental procedural defects" in the deportation hearing that effected "a complete deprivation of judicial review" of the deportation order. See Id. at 840-42.

         After Mendoza-Lopez, the federal courts were left to grapple with the standard that should be applied in evaluating a collateral attack on an underlying deportation order. See, e.g., United States v. Fares, 978 F.2d 52, 57 (2d Cir. 1992) (debating whether a defendant must demonstrate not only that he was deprived of the right to appeal but also that he was prejudiced as a result); United States v. Encarnacion-Galvez, 964 F.2d 402, 406 (5th Cir. 1992) (distilling a two-step test requiring the defendant to demonstrate that his deportation proceeding was "fundamentally unfair" and that the procedural defect complained of had "effectively eliminated [his] right to obtain judicial review of his deportation"); United States v. Proa-Tovar, 945 F.2d 1450, 1453-54 (9th Cir. 1991) (rejecting a requirement that the defendant show prejudice), rev'd en banc, 975 F.2d 592, 594-95 (9th Cir. 1992) (holding that the defendant must show prejudice).

         Congress ultimately amended the INA to establish a statutory right of collateral attack. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, § 441, 110 Stat. 1214, 1279 (codified at 8 U.S.C. § 1326(d)). Section 1326(d) provides:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order... unless the alien demonstrates 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.[9]

8 U.S.C. § 1326(d).

         Although it is often asserted that Congress "codifie[d]" Mendoza-Lopez by enacting § 1326(d), see, e.g., United States v. Moreno-Tapia, 848 F.3d 162, 169 (4th Cir. 2017); see also United States v. Sosa, 387 F.3d 131, 136 (2d Cir. 2004) ("Section 1326(d) was intended as a response to, and codification of, Mendoza-Lopez ...."), that is not entirely accurate. In proposing what became § 1326(d), the conference committee made clear that its intent was to constrain as much as to codify-or, as the committee put it, to "limit[] the ability of an [sic] deportable alien to collaterally challenge an [sic] deportation order in a pending criminal case." H.R. Rep. No. 104-518, at 119 (1996) (Conf. Rep.); accord H.R. Rep. No. 104-22, at 16 (1995) (noting that the provision was intended to establish that aliens could bring collateral attacks "only ... in limited circumstances"). For this reason, other courts have observed that § 1326(d) only "partially" codifies the rule of Mendoza-Lopez. see, e.g., United States v. Garcia-Martinez, 228 F.3d 956, 959 n.5 (9th Cir. 2000), and whether there may be circumstances in which due process requires that a defendant be given an opportunity to bring a collateral attack beyond the requirements and limitations of § 1326(d) remains an open question.


         Defendant asserts that he need not satisfy § 1326(d)'s requirements to prevail on his motion to dismiss the indictment. Instead, because the Notice he received failed to specify a date and time for the removal hearing, he argues that the resulting deportation order was issued by an immigration judge who lacked subject-matter jurisdiction and that this fatal flaw frees him from the burden of making each of the showings under § 1326(d). Although several district courts have adopted this line of reasoning, [10] defendant's arguments are ultimately unconvincing.


         Under the INA as it existed in 2004, immigration authorities who suspected a noncitizen was deportable were required to serve the noncitizen with a "notice to appear." 8 U.S.C. § 1229(a)(1) (2000 & Supp. IV 2004). That ...

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