United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on DEFENDANT'S MOTION TO
DISMISS THE INDICTMENT (ECF No. 16) (the "Motion")
. For the following reasons, this motion was denied by an
ORDER entered January 23, 2019 (ECF No. 21).
Gonzalez-Ferretiz ("Gonzalez-Ferretiz") was charged
in a one-count indictment with illegal reentry pursuant to 8
U.S.C. § 1326(a). ECF No. 3. On November 27, 2018,
Gonzalez-Ferretiz filed DEFENDANT'S MOTION TO DISMISS THE
INDICTMENT (ECF No. 16) (the
"Motion"). The Government filed a brief (ECF No. 17)
in opposition to the Motion. No. reply brief was filed by
Gonzalez- Ferretiz. On January 22, 2019, the Court received
evidence and heard oral argument on the Motion,
II. Factual Background
is a Mexican citizen. ECF No. 17 at 1. He came to the United
States illegally sometime before July 2008, when he was
encountered by Immigration and Customs Enforcement
("ICE") officials in Pennsylvania, Id. He
was granted voluntary departure to Mexico, and was removed to
Mexico on August 5, 2008. Id. He then reentered the
United States on some date before July 23, 2012. On that
date, he gave a sworn statement (written in English) to
immigration officials while in state custody in
Pennsylvania. See Gov't Ex. 1.
on June 2, 2014, Gonzalez-Ferretiz was convicted in
Pennsylvania of "Theft from a Motor Vehicle" and
received a sentence of up to 23 months in prison, which
appears to be time served as of June 2, 2014. ECF No. 17 at
1; Gov't Ex. 2; Def.'s Ex. 1. Following that
conviction, Gonzalez-Ferretiz was served with a "Notice
of Intent to Issue a Final Administrative Removal
Order," or Form 1-851 (hereinafter, the
"1-851"), advising him that, because of the
conviction for an "aggravated felony" under 8
U.S.C. § 1101(a)(43)(G), he was a deportable alien. ECF
No. 17 at 2; Gov't Ex, 3; ECF No. 16 at 1-2. On the
continuation page attached to the 1-851 form,
Gonzalez-Ferretiz was informed of the specific conviction
that served as the basis for his removal; to wit: "Theft
From a Motor Vehicle, in violation of Title 18 Section 3934
Subsection A of the Pennsylvania Criminal Code."
Gov't Ex. 3.
all 1-851 forms, the one served on Gonzalez-Ferretiz
contained a "Certificate of Service." Gov't Ex.
3. This "Certificate of Service" reports that it
had been served on Gonzalez-Ferretiz "in person" on
June 3, 2014; and it recites that it had been "explained
and/or served" on Gonzalez-Ferretiz in English.
Id. Gonzalez-Ferretiz acknowledged the service and
explanation by affixing his signature. Id. Further
down on the same page of the 1-851 form, Gonzalez-Ferretiz
selected a checkbox that stated: "I Do Not Wish to
Contest and/or to Request Withholding of Removal."
Id. He also selected a check-box that stated:
I admit the allegations and charge in this Notice of Intent.
I admit that I am deportable and acknowledge that I am not
eligible for any form of relief from removal. I waive my
right to rebut and contest the above charges. I do not wish
to request withholding or deferral of removal. I wish to be
removed to [Mexico].
Id. Lastly, he selected a check-box that stated:
"I understand that I have the right to remain in the
United States for 14 calendar days in order to apply for
judicial review. I do not wish this opportunity. I waive this
right." Id. After making these
selections, Gonzalez-Ferretiz once again signed the 1-851
form. Id. Deportation Officer Matt Garrison signed
below Gonzalez-Ferretiz's signature as a witness.
evidentiary hearing, Officer Garrison and Deportation Officer
Richard Tine explained the process by which 1-851 forms are
served on an alien. They both testified that, if an alien
indicates that he or she does not speak or understand
English, the alien is provided the 1-851 form in his or her
native language. This is accomplished either by bringing into
the interview a native-speaking immigration official to
explain the document to the alien, or by connecting to the
so-called "language line," which provides
around-the-clock translation services for immigration
officials. If the "language line" is called, the I-
851 form is read to the alien in his native language.
Providing those translations is standard ICE practice, and
Officer Garrison testified that, because no translation was
provided in this case, Gonzalez-Ferretiz would have advised
that he spoke and understood English. At the evidentiary
hearing in this case, counsel for Gonzalez-Ferretiz
represented that Gonzalez-Ferretiz spoke and understood
English, but was using an interpreter in these proceedings
because of the nature of the proceedings.
on the state conviction in Pennsylvania and waivers of his
rights to challenge the removal, a Final Administrative
Removal Order ("Final Order") was issued on June 3,
2014. The Final Order found that
Gonzalez-Ferretiz had a final conviction for an
"aggravated felony" under 8 U.S.C. § 1101 (a)
(43) (G) and that he was removable. Gov't Ex. 4; ECF No.
17 at 2; ECF No. 16-1 at 1. Pursuant to the Final Order,
Gonzalez-Ferretiz was removed from the United States on June
19, 2014. ECF No. 17 at 2.
thereafter, Gonzalez-Ferretiz again reentered the United
States illegally, was discovered by ICE officials, and came
into ICE custody pursuant to a "Reinstatement of the
Removal Order of June 19, 2014. " ECF No. 17 at 3.
On February 20, 2018, Gonzalez-Ferretiz received a copy of
the Notice of Intent/Decision to Reinstate Removal Order, and
pursuant to the 2014 Final Order, he was removed from the
United States on March 7, 2018, Id.; see
also Aff. ¶ 17 (ECF No, 1). Thereafter,
Gonzalez-Ferretiz reentered the United States illegally
again. ECF No. 17 at 3. He was indicted on the
illegal reentry charge on September 19, 2018 (ECF No. 3) and
was arrested pursuant to the indictment on October 23, 2018.
ECF No. 5; ECF No. 17 at 3.
Tine testified that he interviewed Gonzalez-Ferretiz in early
2018; that they spoke in English; and that Gonzalez-Ferretiz
gave no indication that he did not speak and understand
English. Officer Tine was satisfied that Gonzalez-Ferretiz
understood all that was said to him.
Framework for Collateral Challenges to Prior Deportation
has been charged with illegal reentry under 8 U.S.C. §
1326(a). To prove that charge, one of the elements that the
Government will have to establish is that Gonzalez-Ferretiz
"has been denied admission, excluded, deported, or
removed" and thereafter reentered the United States
without, inter alia, the permission of the United
States Attorney General. 8 U.S.C. § 1326(a). In
United States v. Mendoza-Lopez, 481 U.S. 828 (1987),
the Supreme Court of the United States held that, in illegal
reentry cases, an alien has a due process right to challenge
the underlying deportation order. Thereafter, Congress
codified the due process requirements in 8 U.S.C. §
1326(d). See United States v. Moreno-Tapia, 848 F.3d
162, 165-66, 169 (4th Cir. 2017). At bottom, Section
1326(d)Mis concerned with failures of due process
in an immigration proceeding that would make it fundamentally
unfair to rely on a removal order coming out of that
proceeding." Id. at 169. The statute focuses
the inquiry on whether there were "procedural defect[s]
in an immigration proceeding [that] insulate the resulting
order from judicial review. ..." Id.
1326(d) sets out three elements that an alien must prove to
challenge the underlying deportation order. In full, that
In a criminal proceeding under this section [8 U.S.C. §
1326], an alien may not challenge the validity of
the deportation order described in subsection (a)(1) or
subsection (b) 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
(3) the entry of the order was fundamentally unfair.
8 U.S.C. § 1326(d) (emphasis added). To satisfy Section
1326(d)(3), the Fourth Circuit has held that an alien
"must show that (1) his due process rights were violated
by defects in his underlying deportation proceeding, and (2)
he suffered prejudice as a result of the defects."
United States v. El Shami, 434 F.3d 659, 664 (4th
Cir. 2005) (quoting United States v. Wilson, 316
F.3d 506, 510 (4th Cir. 2003)). To show prejudice, the alien
must show that, "but for the errors complained of, there
was a reasonable probability that he would not have been
deported." Id. at 665. An alien may be excused
from meeting certain Section 1326(d) requirements if the
underlying deportation proceeding was procedurally flawed.
See Moreno-Tapia, 848 F.3d at 169; UnitedStates v. Lopez-Collazo, 824 F.3d 453, 459-62 (4th
Cir. 2016) (due process violation where alien was served the