Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Zuniga

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

May 10, 2019




         This matter is before the Court on DEFENDANT'S MOTION TO DISMISS THE INDICTMENT (the "Motion") (ECF No. 13), which for the following reasons, will be denied.


         1. Procedural Context

         Erlin Torres Zuniga ("Torres")[1] was charged in a one-count indictment with illegal reentry pursuant to 8 U.S.C. § 1326(a). ECF No. 1. On February 22, 2019, Torres filed the Motion. ECF No. 13. The parties briefed the Motion, [2] and, on April 9 and 10, 2019, the Court received evidence and heard oral argument on it. The Motion is now ripe for decision.

         II. Factual Background Torres is a citizen of Honduras. ECF No. 14 at 1; Gov't Ex.

         2. Torres, then 17-years-old, entered the United States illegally near Sasabe, Arizona sometime around July 11, 2007. Gov't Ex. 2. On July 16, 2007, Torres was served in person with a Notice to Appear ("NTA") informing him that he was to appear at a future removal hearing and advising him of the consequences of failing to appear.[3] Gov't Ex. 2 (the "2007 NTA"). Thereafter, Torres attended an immigration hearing on September 28, 2007 at which he was granted voluntary departure to Honduras.[4] Gov't Ex. 3. Torres left the United States on October 31, 2007 on an immigration charter flight from Houston, Texas. Gov't Ex. 4. This was Torres' first known encounter with immigration officials.

         Then, on or around February 5, 2008, Torres reentered the United States illegally, again near Sasabe, Arizona. Gov't Ex. 5. Torres was issued a second NTA on February 6, 2008. Id. (the "2008 NTA"). The 2008 NTA indicates that Torres was being held at the Southwest Key Unaccompanied Minor Shelter in Phoenix.[5] Id.; ECF No. 13 at 1.

         The 2008 NTA did not contain a date or time for Torres' immigration hearing. Gov't Ex. 5; ECF No. 13 at 1; ECF No. 14 at 1. The 2008 NTA's Certificate of Service reflects that Torres was served with the NTA in person on February 6, 2008, and that he was given oral notice of the time and place of his immigration hearing, as well as the consequences of not appearing. Govt' Ex. 5. An attachment to the 2008 NTA included a list of free legal services. Id.

         On March 4, 2008, while still held at the Southwest Key Unaccompanied Minor Shelter, a Notice of Hearing ("NOH") was provided to Torres. The NOH advised Torres that his hearing before the immigration court would occur on March 17, 2008 at 9:00 a.m. at the specified immigration court in Phoenix, Arizona. Gov't Ex. 6. The Certificate of Service does not indicate how the NOH was served on Torres, but does indicate that the NOH was served on the "Alien c/o Custodial Officer" and also that it was served on "DHS." Id.

         Torres appeared in person at the immigration hearing on March 17, 2008. Gov't Ex. 7 (indicating Order of the Immigration Court was served on Torres in person); ECF No. 14 at 2. At the hearing, Torres was represented by pro bono counsel Elizabeth Sweet. ECF No. 19 at 2 (Immigration Hr'g Tr.). The immigration court allowed a short recess for Torres to consult with counsel. Id. at 3. Through counsel, Torres "'concede[d] proper service of the charging document," "admit[ted] [the remaining] factual allegations" in the NTA, "designate[d] Honduras as [the] country of removal," and "waive[d] appeal." Id. at 2-4. Torres told the Immigration Judge that he wanted to return to Honduras and that he did not fear harm in returning there. Id. at 4. At the close of the hearing, Ms. Sweet withdrew as Torres' counsel. Id.

         On that same day (March 17, 2008), the immigration court issued an Order of Removal for Torres, designating Honduras as the country of removal. Gov't Ex. 7. A Warrant of Removal/Deportation for Torres was issued on April 8, 2008. Gov't Ex. 8. Torres was removed from the United States on an immigration flight from Houston, Texas on April 14, 2008. Id. At the time of his 2008 removal, Torres was issued (and signed) a form informing him that he was prohibited from entering the United States for a period of 10 years. Id.

         Following his removal in 2008, Torres' immigration record establishes that he re-entered the United States illegally on or about June 14, 2012, on or about February 5, 2013, and on or about March 31, 2014. See Gov't Exs. 9, 11, 13. In each case, he was encountered by immigration officials and his 2008 Removal Order (Gov't Ex. 7) was reinstated. Id. And, in each case, pursuant to the 2008 Removal Order, he was removed from the United States. See Gov't Exs. 10, 12, 14. At each removal, Torres was issued (and signed) a form informing him that he was now prohibited from entering the United States for a period of 20 years because he had illegally entered the United States following removal. Id.

         Torres was then encountered in Virginia on or about November 27, 2018.[6] See ECF No. 1. Thereafter, he was indicted for the presently pending illegal reentry charge. Id.


         I. Framework For Collateral Challenges To Prior Deportation Orders

         Torres 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 Torres "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 in a material way. 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 I-851 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.