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United States v. Gonzalez-Ferretiz

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

February 25, 2019




         This 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).


         I. Procedural Context

         Isidoro 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").[1] 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

         Gonzalez-Ferretiz 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[2] 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.[3] See Gov't Ex. 1.

         Then, 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.

         Like 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."[4] 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. Id.

         At the 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.

         Based 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.[5] 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.

         Sometime 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. "[6] 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.[7] 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.

         Officer 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.


         A. Framework for Collateral Challenges to Prior Deportation Orders

         Gonzalez-Ferretiz 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.

         Section 1326(d) sets out three elements that an alien must prove to challenge the underlying deportation order. In full, that subsection reads:

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 review; and
(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 ...

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