United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge.
matter is before the Court on the Defendant's MOTION TO
DISMISS INDICTMENT (the "Motion") (ECF No. 18). For
the reasons set forth below, the Motion will be denied.
Diaz-Martinez ("Diaz-Martinez") was charged in a
one-count indictment with illegal reentry pursuant to 8
U.S.C. § 1326(a). ECF No. 3. On October 24, 2018,
Diaz-Martinez filed his Motion (ECF No. 18) . The parties
briefed the Motion, and, on November 27, 2018, the Court
received evidence and heard oral argument on it. See Nov. 27
Hr'g Tr. (hereinafter "Hr'g Tr.") (ECF No.
conclusion of the November 27 hearing, the Court ordered
supplemental briefing on several issues that arose at the
hearing. Hr'g Tr. at 125-129; ORDER (ECF No.
Then, after reviewing the supplemental briefing, and upon
further consideration of the Motion, the Court ordered a
second round of supplemental briefing on additional, specific
questions pertaining to the Motion (ECF No. 41) . The matter
was fully submitted to the Court on April 1, 2019, and is now
ripe for decision.
Trinidad Diaz-Martinez was born in and is a citizen of El
Salvador. ECF No. 18 at 1. At some point in or around August
1996 (when he was 16-years-old), Diaz-Martinez entered the
United States illegally. ECF No. 19 at 1. He encountered U.S.
Border Patrol on or around August 17, 1996 and was assigned
an alien file number ending in "669." Id.;
Hr'g Tr. at 55 (ECF No. 30) .
November 27 evidentiary hearing, Diaz-Martinez's uncle,
Santos Lemus ("Lemus") testified that, following
Diaz-Martinez's encounter with immigration officials in
August 1996, he (Lemus) received a phone call informing him
of his nephew's situation. Hr'g Tr. at 9, 36. Lemus then
requested that immigration officials allow Diaz-Martinez to
stay with him. Id. Immigration officials allowed
this arrangement and mailed documents to Lemus for him to
fill out so that Lemus could become the responsible party for
Diaz-Martinez. Id. at 13, 27, 37; Def. Ex. C. These
documents were mailed to and received by Lemus at Lemus'
apartment: 1001 Heritage Park, Apartment T2 in
Fredericksburg, Virginia ("Heritage
Park"). Hr'g Tr. at 9, 13, 27-28, 37. Among
other things, the paperwork that Lemus received from
immigration officials required Lemus to take Diaz-Martinez to
all immigration court proceedings. Id. at 28. Lemus
signed this paperwork. Id.
August 27, 1996, Diaz-Martinez was personally served (care of
Lemus) a "Show Cause Order," which explained in
Spanish that immigration officials believed that
Diaz-Martinez was an alien who was not lawfully admitted, and
that he was to have a hearing before an immigration judge
where he would receive information about any relief from
deportation for which he might be eligible. ECF No. 19 at
1-2; Gov't Ex. 1. Further, this Show Cause Order informed
Diaz-Martinez that if he were ordered removed, he would have
certain administrative remedies. ECF No. 19 at 2; Gov't
September 5, 1996, Diaz-Martinez received an "Order of
Release on Recognizance" and was released to the custody
of his uncle, Lemus. ECF No. 18 at 2; ECF No. 19 at 2;
Gov't Ex. 2. The form was in English, but Diaz-Martinez
signed the portion of the form indicating that it had been
explained to him in Spanish. Gov't Ex. 2. Neither the
Show Cause Order nor the Order of Release on Recognizance
informed Diaz-Martinez of when his immigration hearing would
be held. ECF No. 18 at 2. After this paperwork was sorted
out, Diaz-Martinez went to live with Lemus at the Heritage
Park apartment. Hr'g Tr. at 8-10, 29.
18, 1997, a "Notice to Appear" ("NTA")
was allegedly mailed by immigration officials to
Diaz-Martinez at the Heritage Park address. ECF No. 18 at 2;
Hr'g Tr. at 62; Gov't Ex. 3. The NTA was sent by
regular mail. Id. The NTA did not set a date and
time for Diaz-Martinez's immigration hearing; rather, it
stated that the hearing would be at a date and time "to
be set." ECF No. 18 at 2; ECF No. 19 at 2; Hr'g Tr.
at 64; Gov't Ex. 3. Then, on July 11, 1997, the
immigration court allegedly mailed a "Notice of
Hearing" ("NOH") to Diaz-Martinez at the
Heritage Park address stating that his immigration hearing
would be held on August 13, 1997 at 1:30 p.m. at a specific
address in Arlington, Virginia. ECF No. 18 at 2-3; ECF No. 19
at 3; Hr'g Tr. at 67; Gov't Ex. 4.
argues that the record contains no evidence that he ever
received the NTA, the NOH, or the Order of the Immigration
Judge (the document informing him that he had been removed).
ECF No. 18 at 2-3; Gov't Ex. 5. Diaz-Martinez did not
testify to this himself, and his evidence on the lack of
receipt of these documents comes only from Lemus'
testified that he and Diaz-Martinez lived at the Heritage
Park address for all of 1997 and that he (Lemus) never
received any mail at that address (addressed either to
Diaz-Martinez or addressed to Lemus) informing Diaz-Martinez
of his immigration court proceedings. Hr'g Tr. at 28-29,
33, 42, 44-45. Lemus further testified that he was the only
person who had a key to his mailbox, id. at 30-31,
and that Diaz-Martinez never checked the mail for him.
Id. at 40. And, he testified that, on several
occasions, the mail carrier put mail in the wrong mailbox,
causing . Lemus to miss paperwork from his car insurer on
about five occasions, Christmas cards from his employer on
about seven occasions, and his legal permanent residence
card. Id. at 30-33. Had he received
notice from immigration officials to take Diaz-Martinez to
immigration court, Lemus stated that he would have done so.
Id. at 33. That is so because he had signed a
document in which he agreed that he would take Diaz-Martinez
to all immigration court proceedings. Id. at 27-28.
prescribed on the NOH, an immigration hearing for
Diaz-Martinez was held on August 13, 1997, but neither
Diaz-Martinez nor Lemus appeared. ECF No. 18 at 3; Hr'g
Tr. at 69. Diaz-Martinez was ordered removed in absentia to
El Salvador. ECF No. 19 at 3; Hr'g Tr. at 69; Gov't
Ex. 5. In the Order of Removal, the immigration judge wrote
"Only relief is motion to reopen." Id. A
certificate of service attached to the Order of Removal
indicates that it was mailed (via regular mail) to
Diaz-Martinez "c/o Custodial Officer" on August 13,
1997. Hr'g Tr. at 69; Gov't Ex. 5. The record also
contains a cover letter (ECF No. 34-2 at 4) dated August 14,
1997, addressed to Diaz-Martinez at the Heritage Park
address, that states that the immigration court's order
is attached. Diaz-Martinez asserts that he did not receive
this document either.
on October 31, 1997, immigration officials mailed (by
certified mail) to Diaz-Martinez at Heritage Park a Form
1-166 informing him that: (1) he had been found deportable;
(2) there was no relief available to him; (3) his
deportation would be enforced; and (4) he was to turn himself
in on December 4, 1997 for deportation. ECF No. 18 at 4; ECF
No. 19 at 3; Hr'g Tr. at 71-73; Gov't Ex. 6. That
same certified mailing also contained a Form 1-294, informing
Diaz-Martinez that he was inadmissible for a period of five
years after his removal. Id. Diaz-Martinez signed
for the receipt of these documents. ECF No. 18 at 4; ECF No. 19
at 3; Gov't Ex. 6. Because Diaz-Martinez signed for the
certified mail, it could not have been delivered to
Lemus' mailbox like the other notices would have been.
ECF No. 38 at 2 n.l.
December 4, 1997 date for Diaz-Martinez to turn himself in
came and went. ECF No. 19 at 4; Hr'g Tr. at 73. A warrant
was issued for his arrest. Id. At some point in 1999
(perhaps February), Lemus testified that Diaz-Martinez left
the Heritage Park address. Hr'g Tr. at 29, 35, 43-44.
Lemus did not know where Diaz-Martinez went after leaving the
Heritage Park address in 1999. Id. at 44, 47. Even
though Lemus considered that he was still responsible for
Diaz-Martinez, Lemus testified that he did not inform
immigration officials that Diaz-Martinez had left the
Heritage Park address. Id. at 47-48.
did not encounter law enforcement again until July 12, 1999,
when he was arrested by the Stafford County Sheriff's
Department and turned over to immigration officials on his
1997 Removal Order. ECF No. 19 at 4; Hr'g Tr. at 74;
Gov't Ex. 7. He was released that same day on an Order of
Supervision, which required him to follow certain conditions,
including checking in with immigration officials each month.
ECF No. 19 at 4; Hr'g Tr. at 74-77; Gov't Ex. 8.
Diaz-Martinez followed this check-in requirement for a few
months. Hr'g Tr. at 77-7 9; Gov't Ex. 9. During the
October 1999 check-in, Diaz-Martinez was informed that he
would be deported on November 1, 1999 (pursuant to the 1997
Removal Order). Hr'g Tr. at 78. Diaz-Martinez did not
show up to be removed on November 1, 1999, and again, an
active warrant for his removal was issued. Id.
April 2001, Diaz-Martinez applied for Temporary Protected
Status ("TPS") and for Employment Authorization.
ECF No. 18 at 4; ECF No. 19 at 5; Gov't Exs. 10-11. On
his initial application, he provided a different address than
had been provided in previous immigration proceedings and
falsely stated (under penalty of perjury) that he had not
previously been involved in immigration proceedings. ECF No.
19 at 5; Hr'g Tr. at 83-84; Gov't Exs. 10-11.
Further, the applications indicated that Diaz-Martinez
received assistance in filing his applications from Gerardo
Aguilar. Hr'g Tr. at 81; Gov't Exs. 10-11. Both the
TPS and Employment Authorization applications were granted.
ECF No. 19 at 5. And, because Diaz-Martinez falsely stated
that he had not previously been involved with immigration
officials, he was issued a new alien number ending in
"85." Id.; Hr'g Tr. at 84.
using his new alien number, Diaz-Martinez applied for renewal
of either his TPS or his Employment Authorization (or both)
on several occasions between 2003 and 2010. Hr'g Tr. at
92-105; Gov't Exs. 13-16, 22-23, 25-29. In 2005,
Diaz-Martinez was informed that his TPS was being withdrawn
because he had several criminal convictions. Hr'g Tr. at
97-98; Gov't Exs. 17-19. His TPS was ultimately
terminated in 2006 and his appeal of this decision was
denied. Hr'g Tr. at 97-101; Gov't Exs. 17-21.
December 2011, Diaz-Martinez was arrested on his outstanding
1997 Removal Order and was removed from the United States on
January 17, 2012. ECF No, 19 at 7/ Hr'g Tr. at 106;
Gov't Ex. 30. Thereafter, Diaz-Martinez reentered the
United States without authorization. ECF No. 18 at 4; ECF No.
19 at 8. In February 2018, he was arrested for several state
offenses. ECF No. 19 at 8. He was convicted of these offenses
and turned over to immigration officials. Id.
Following this, he was indicted by the grand jury for the
illegal reentry charge he now faces. Id. He was
arrested on this charge on August 9, 2018. ECF No. 7.
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 Diaz-Martinez
"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) "is 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/ United States
v. Lopez-Collazo, 824 F.3d 453, 459-62 (4th Cir. 2016)
(due process violation where alien was served the 1-851 form
in language he did not understand); El Shami, 434
F.3d at 662-64 (excusal from Sections 1326(d)(1) and (d)(2)
and due process violation where alien did not receive notice
of his immigration proceeding) .
evident from the statutory text that the defendant must
satisfy (or be excused from) all three elements of Section
1326(d) to succeed in a collateral challenge. And, this Court
has so held. United States v. Gonzalez-Ferretiz, No.
3:18-cr-117, 2019 WL 943388, *3-4 (E.D. Va. Feb. 26, 2019)
(surveying Fourth Circuit and district court decisions and
holding "that an alien may only challenge his underlying
deportation order by satisfying the three requirements of
Section 1326(d)"); see also Moreno-Tapia, 848
F.3d at 166; El Shami, 434 F.3d at 663; United
States v. Gomez-Salinas, No.2:19crl0, 2019 WL 1141063,
*2-4 (E.D. Va. Mar. 12, 2019) (Davis, C.J.) ("[A]
defendant must satisfy all three provisions [of Section
1326(d)] before he may wage a collateral attack on the prior
removal order."); United States v.
Romero-Caceres, No. 1:18-cr-354, 2018 WL 6059381, at *3
(E.D. Va. Nov. 19, 2018) ("[D]efendant here may not
challenge the June 2007 Removal Order unless he meets all
three § 1326(d) requirements."). The Court's
analysis in Gonzalez-Ferretiz applies in full force
Court has previously noted, the burden of proof to establish
that the elements of Section 1326(d) have been satisfied
"rests with the defendant." United States v.
Galcia, No. I:15cr59, 2016 WL 4054926, *2 (E.D. Va. July
26, 2016). And, that burden must be met by "a
preponderance of the evidence." Id. (citing
several cases). If the alien meets his burden, "the
illegal reentry charge must be dismissed as a matter of
law," El Shami, 434 F.3d at 663 (citing
allowing collateral challenges in Section 1326 prosecutions
outside of Section 1326(d) flies in the face of the clear
statutory text and Congress' intent. Accordingly,
if the Court determines that Diaz-Martinez has failed to
satisfy any of the three elements of Section 1326(d), his
collateral challenge must be rejected, and his motion denied.
Conversely, however, if Diaz-Martinez satisfies (or is
excused from) the three elements of Section 1326(d), the
illegal reentry indictment must be dismissed. See El
Shami, 434 F.3d at 663.
Motion rests on two arguments. First, he argues that he
satisfies (or is excused from) the requirements of 8 U.S.C.
§ 1326(d), largely because he says he never received
notice of his 1997 immigration hearing. Second, he argues
that, because of defects in the NTA in 1997, the immigration
court lacked jurisdiction to enter his removal order.
Court will address each of these arguments in turn. And, for
the reasons set out below, will deny the Motion.
argues that he can succeed on a collateral attack under
Section 1326(d) because he did not have notice of his 1997
removal proceedings, which, he argues: (1) excuses him from
satisfying Section 1326(d) (1) and (d) (2); and (2)
establishes a due process violation and prejudice, thereby
satisfying Section 1326(d)(3). Alternatively, he argues that
he is excused from Section 1326(d)(1) and (d)(2) because he
was affirmatively misadvised of the remedies available to
him. See ECF No. 44 at 20 (summarizing
Diaz-Martinez's position). The Government has
consistently argued that Diaz-Martinez has not satisfied his
burden to satisfy the three requirements of Section 1326(d).
See generally ECF No. 47.
careful review of the evidence in this case, the Court finds
that Diaz-Martinez has proffered sufficient evidence to show
that he did not receive notice of his 1997 immigration
hearing. This, under El Shami, 434 F.3d at 663-65,
excuses him from satisfying the administrative exhaustion and
judicial review prongs of Section 1326(d)(1) and (d)(2), and
establishes a due process violation. However, on the evidence
in the record, Diaz- Martinez has failed to satisfy his
burden to demonstrate that he suffered prejudice. Thus, he
cannot satisfy Section 1326(d)(3), and his collateral attack
Diaz Martinez Has Established That He Did Not Receive Notice