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United States v. Hernandez

United States District Court, W.D. Virginia, Charlottesville Division

April 18, 2019

United States of America
Ersy Alejandro Hernandez, Defendant.



         This 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.

         I. Factual Background

         Hernandez 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.).

         Two 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).

         On 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. (Id.).

         On 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.).

         II. Legal Standard

         Criminal 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).

         Collateral attacks of deportation orders are authorized where, as here, those orders are necessary to establish an element of the charged illegal reentry offense.[1] 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).

         III. Argument

         The 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.

         A. Hernandez's First Motion to Dismiss - § 1326(d) Collateral Attack

          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.

         1. Fundamental Unfairness

         “To 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, ...

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