United States District Court, W.D. Virginia, Charlottesville Division
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court upon Defendant Ersy Alejandro
Hernandez's (“Hernandez”) motions to dismiss
the indictment. (Dkts. 30, 37). On August 22, 2018, Hernandez
was indicted on one count of illegal reentry in violation of
8 U.S.C. § 1326(a). (Dkt. 1). In his first motion to
dismiss the indictment, Hernandez seeks to collaterally
attack the underlying deportation order as fundamentally
unfair, contending that his waiver of constitutional rights,
executed through a stipulation order, was not knowing and
voluntary. (Dkt. 30). In his second motion, Hernandez argues
that the indictment must be dismissed under Pereira v.
Sessions, 138 S.Ct. 2105 (2018) because the notice to
appear he received did not contain the time and date of his
deportation proceeding. (Dkt. 37). For the reasons that
follow, Hernandez's first motion will be granted, and his
second motion will be denied as moot.
first encountered police and was arrested for trafficking
methamphetamine on January 12, 2010. (Dkt. 30 at 1). Three
days later, Hernandez was arrested and detained by the
Department of Homeland Security (“DHS”).
(Id.). That same day, Hernandez was provided with
notice of his rights and indicated he wanted a hearing with
an Immigration Judge (“IJ”). (Dkt. 30-3). An
immigration officer signed a certification of service
indicating that she read the notice to Hernandez in Spanish.
(Id.). While Hernandez was in DHS custody, he was
indicted in South Carolina for distribution of
methamphetamine. (Dkt. 30 at 1). On February 1, 2011,
Hernandez pled guilty to simple possession of methamphetamine
and was sentenced to time served. (Id.).
days after he entered a guilty plea, Hernandez was issued a
notice to appear for removal proceedings. (Id.). The
notice to appear stated that Hernandez was not a citizen of
the United States, that he was a native of Honduras, and that
he had not legally entered the United States. (Dkt. 30-4).
The notice to appear further ordered Hernandez to appear
before an IJ “at 146 CCA Road Lumpkin Georgia U.S.
31815 on a date to be set [and] at a time to be set.”
(Id.; dkt. 37-1).
February 25, 2011, Hernandez signed a stipulation containing
numerous statements in both English and Spanish. (Dkt. 30-5).
The stipulation included statements indicating that Hernandez
understood his right to a hearing before an IJ and to be
represented by an attorney or other representative.
(Id.). The stipulation further stated that Hernandez
wished to proceed without an attorney, and that he understood
that, by signing the document, he was giving up his right to
a hearing, the right to question witnesses or present
evidence, and the right to appeal the IJ's decision.
(Id.). Finally, Hernandez checked a box indicating
that the stipulation had been read to him in Spanish.
March 3, 2011, an attorney for Immigration and Customs
Enforcement (“ICE”), moved for an entry of an
order of removal as to Hernandez based on the signed
stipulation. (Dkts. 30, 30-6). Four days later, an IJ signed
an order stating that “[u]pon consideration of the
evidence submitted with the Motion, and based on the
respondent's admission of the factual allegations and the
concession to the charge[s], the Court finds the respondent
removable from the United States as charged.” (Dkts.
30, 30-7). On March 28, 2011, Hernandez was removed from the
United States. (Dkt. 31-1). Approximately seven years later,
on March 23, 2018, Hernandez was arrested in the United
States on state charges. (Dkt. 32). While in state custody,
Hernandez was encountered by ICE officers. (Id.). On
August 22, 2018, Hernandez was charged with illegal reentry
in violation of 8 U.S.C. § 1326(a). (Id.). His
state charges remain pending. (Id.).
defendants may allege defects in indictments in pretrial
motions, including “(i) joining two or more offenses in
the same count (duplicity); (ii) charging the same offense in
more than one count (multiplicity); (iii) lack of
specificity; (iv) improper joinder; and (v) failure to state
an offense.” Fed. R. Crim. P. 12(b)(3)(B). An
indictment must contain a “plain, concise and definite
written statement of the essential facts constituting the
offense charged.” Fed. R. Crim. P. 7(c)(1). See
also United States v. Daniels, 873 F.2d 272, 274 (4th
Cir. 1992) (“An indictment must contain the elements of
the offense charged, fairly inform a defendant of the charge,
and enable the defendant to plead double jeopardy as a
defense in a future prosecution for the same
offense.”). A reviewing court “should regard all
well pleaded facts as true when considering a motion to
dismiss an indictment.” United States v. Dove,
70 F.Supp.2d 634, 636 (W.D. Va. 1999). A court should not
dismiss an indictment on the basis of “facts that
should” be “developed at trial.” United
States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012).
Rather, motions to dismiss indictments should generally be
denied unless “the allegations therein, even if true,
would not state an offense.” United States v.
Thomas, 367 F.3d 194, 197 (4th Cir. 2004).
attacks of deportation orders are authorized where, as here,
those orders are necessary to establish an element of the
charged illegal reentry offense. See United States v.
Mendoza-Lopez, 481 U.S. 828, 837-38 (1987) (review of
deportation proceeding must be “made available in any
subsequent proceeding in which the result of the deportation
proceeding is used to establish an element of a criminal
offense”). Under § 1326(d), a defendant mounting a
collateral attack against an underlying deportation order
must show that (1) he “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” him of
the “opportunity for judicial review”; and (3)
entry of the order was “fundamentally unfair.” If
a “defendant satisfies all three requirements, the
illegal reentry charge must be dismissed as a matter of
law.” United States v. El Shami, 434 F.3d 659,
663 (4th Cir. 2005).
Court will address each of Hernandez's motions to dismiss
the indictment in turn, beginning with Hernandez's first
motion to dismiss seeking to collaterally attack the
underlying deportation order.
Hernandez's First Motion to Dismiss - § 1326(d)
Hernandez claims that his waiver of rights was fundamentally
unfair because it was not found to be knowing, voluntary, or
intelligent, in violation of his Fifth Amendment right to due
process of law and that the IJ's failure to make such a
finding violated the controlling regulations. Hernandez
further claims that, because the waiver was fundamentally
unfair, he was denied judicial review and is excused from the
exhaustion requirement. Because Hernandez's arguments
regarding exhaustion and judicial review hinge on the issue
of fundamental fairness, the Court will first examine whether
the waiver was fundamentally unfair.
demonstrate fundamental unfairness a defendant 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.” El
Shami, 434 F.3d at 664. Hernandez claims that his due
process rights were violated in two ways. First, Hernandez
contends that his waiver was not knowing, voluntary and
intelligent “because there was no finding by the IJ
that this waiver” met those requirements. (Dkt. 30 at
6-7). Second, Hernandez contends that in failing to make such
a finding, the IJ did not meet the requirements of the
underlying regulations. (Id. at 7). Hernandez claims
that he suffered prejudice as a result of both of these
alleged deficiencies because, ...