United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. DAVIS CHIEF UNITED STATES DISTRICT JUDGE.
matter is before the Court on a motion filed by Defendant
Carlos Gomez-Salinas ("Defendant" or
"Gomez-Salinas") to dismiss the indictment against
him. ECF No. 12. For the reasons stated below,
Defendant's Motion to Dismiss is DENIED.
FACTUAL and PROCEDURAL HISTORY
underlying facts of this case do not appear to be in dispute.
Defendant Gomez-Salinas is a citizen of Mexico. Response, ECF
No. 13 at 1. He first illegally entered the United States at
some point prior to February 12, 2006. Id. On
February 12, 2006, Defendant was arrested by
Charlotte-Mecklenburg police for resisting a public
officer. Id. at 1, Ex. 1 (arrest record) .
On April 15, 2007, Defendant was again arrested by Charlotte-
Mecklenburg police for domestic assault. Id. at 1,
Exs. 1, 2 (police report).
these arrests, on April 26, 2007, Defendant was served in
person with an Immigration and Naturalization Service
("INS") Notice to Appear ("Notice to
Appear"). Motion to Dismiss, ECF No. 12, Ex. B. The
Notice to Appear advises Defendant that removal proceedings
under section 240 of the Immigration and Nationality Act were
initiated against him, that he is ordered to appear at a
hearing before an immigration judge, and stated that the date
and time of the hearing would be set later. Id.
31, 2007, attorney Jeannette Freeman filed a Notice of
Appearance in Defendant's Removal Proceeding, with such
Notice providing the Defendant's address in Marietta,
Georgia. Response, Ex. 3. On that same date, the immigration
court served a Notice of Hearing in Removal Proceeding,
indicating the time, date, and place of the hearing, on the
Defendant at the same Marietta address provided by his
attorney. Id., Ex. 4. The hearing was scheduled for
August 28, 2007. Id. On August 28, 2007, a second
Notice of Hearing in Removal Proceedings was personally
served on the Defendant indicating a new date for the removal
hearing on September 27, 2007. Id., Ex. 5. On
September 24, 2007, the immigration court served a third
Notice of Hearing on Defendant's counsel rescheduling the
hearing for October 23, 2007. Id., Ex. 6.
the removal hearing was again rescheduled for September 2,
2008. Id., Ex. 10. Counsel sent a letter to
Defendant dated July 21, 2008, which informed the Defendant
of the time and place of his upcoming September 2 hearing
with the immigration court. Id., Ex. 11. On August
5, 2008, Defendant's attorney in the removal proceedings
filed a motion to withdraw representation. Id., Ex.
10. The attorney cited a breakdown of communications with
Defendant. Id. The record does not indicate that the
motion to withdraw was ever granted.
August 27, 2008, the immigration court issued a fourth Notice
of Hearing setting the hearing for November 18, 2008 at 8:30
a.m. at 180 Spring Street, Southwest, Suite 241, Atlanta,
Georgia 30303. Id;, Ex. 12. This Notice of Hearing was served
on Defendant's counsel.
November 18, 2008, the hearing was held. Id., Ex.
13. Defendant was not present. Id. Immigration Judge
Wayne K. Houser, Jr. ordered that the Defendant be removed to
Mexico ("Removal Order"), noting in the Removal
Order that '' [a]t a prior hearing the
respondent admitted the factual allegations in the Notice to
Appear and conceded removability." Id. On
December 11, 2008, the Defendant was removed at the Hidalgo
Point of Entry and an Immigration Agent witnessed his
departure from the United States into Mexico. Id.,
the Defendant illegally re-entered the United States.
Id., Ex. 15. Pursuant to a Decision to Reinstate the
November 2008 Removal Order, the Defendant was removed for a
second time to Mexico from the United States on May 10, 2012.
id., Exs. 15, 16. Subsequent to his second removal
to Mexico, Defendant again illegally re-entered the United
States. On December 24, 2018, the Defendant was arrested in
Chesapeake, Virginia, and charged with public intoxication in
violation of Va. Code § 18.2-157. Id., Ex. 17.
January 10, 2019, Defendant was indicted for the instant
offense: Reentry of a Previously Deported Alien, in violation
of 8 U.S.C. § 1326(a). ECF No. 1. On January 29, 2019,
Defendant filed the instant motion to dismiss. ECF No. 12. In
the motion, Defendant argues that because the April 2007 INS
Notice to Appear failed to include the date and time of
Defendant's removal proceeding, the immigration court
lacked jurisdiction to order Defendant's removal.
Defendant contends that the November 2008 Removal Order is
invalid, and the current 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. On February 12, 2019, the Government filed a
response. ECF No. 13. Defendant has not filed a reply and the
deadline to do so has passed; the motion is ripe for
decision. The Court has reviewed the parties' submissions
and concludes that a hearing is not necessary. Local Criminal
8 U.S.C. § 1326(d)
seeks a collateral judicial review of his November 2008
Removal Order, arguing that the order was ultra
vires because the immigration court lacked jurisdiction
as the April 2007 Notice to Appear did not include a date and
time for the hearing. An alien charged with illegal re-entry
may, in a criminal proceeding under § 1326, wage such a