United States District Court, E.D. Virginia, Richmond Division
E. PAYNE SENIOR UNITED STATES DISTRICT JUDGE.
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.
Torres Zuniga ("Torres") 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,
and, on April 9 and 10, 2019, the Court received evidence and
heard oral argument on it. The Motion is now ripe for
Factual Background Torres is a citizen of
Honduras. ECF No. 14 at 1; Gov't Ex.
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. 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. 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.
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. Id.; ECF
No. 13 at 1.
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.
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.
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.
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
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
was then encountered in Virginia on or about November 27,
2018. See ECF No. 1. Thereafter, he was
indicted for the presently pending illegal reentry charge.
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 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.
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 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 ...