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United States v. Diaz-Martinez

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

May 1, 2019



          Robert E. Payne, Senior United States District Judge.

         This 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.


         I. Procedural Context

         Trinidad 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. 30).

         At the 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. 29).[1] 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.

         II. Factual Background

         Defendant 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) .

         At the 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.[2] 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").[3] 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.

         On 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.[4] ECF No. 19 at 2; Gov't Ex. 1.

         On September 5, 1996, Diaz-Martinez received an "Order of Release on Recognizance" and was released to the custody of his uncle, Lemus.[5] 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.

         On June 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.

         Diaz-Martinez 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' testimony.

         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.[6] 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.

         As 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.[7] 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.

         Then, 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;[8] (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.[9] 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.

         The 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.

         Diaz-Martinez 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. 78-79.

         In 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.

         Subsequently, 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.

         In 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.


         I. Framework for Collateral Challenges to Prior Deportation Orders

         Diaz-Martinez 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.

         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/ 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) .

         It is 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 here.[10]

         As the 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 Wilson).

         In sum, allowing collateral challenges in Section 1326 prosecutions outside of Section 1326(d) flies in the face of the clear statutory text and Congress' intent.[11] 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.

         II. Analysis

         Diaz-Martinez's 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.

         The Court will address each of these arguments in turn. And, for the reasons set out below, will deny the Motion.

         A. Section 1326(d)

         Diaz-Martinez 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.

         After a 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 must fail.

         (1) Diaz Martinez Has Established That He Did Not Receive Notice ...

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