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United States v. Segura-Virgen

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

May 15, 2019



          Robert E. Payne Senior United States District Judge.

         This matter is before the Court on DEFENDANT'S MOTION TO DISMISS THE INDICTMENT (the "Motion") (ECF No. 11) which, for the following reasons, will be denied.


         I. Procedural Context

         Rodolfo Segura-Virgen ("Segura")[1] was charged in a one-count indictment with violating 8 U.S.C. § 1326(a) and (b)(2) by reentering the country after having been removed. ECF No. 1. On February 22, 2019, Segura filed the Motion. ECF No. 11. The parties fully 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 decision.

         II. Factual Background

         Segura is a citizen of Mexico. ECF No. 12 at 1; Gov't Ex. 2. He entered the United States illegally at or near San Ysidro, California on or around June 1, 1990, when he was nine-years-old. Gov't Ex. 2.

         In September 1993, Segura's mother filed an 1-130, a "Petition for Alien Relative" (the "1-130"). ECF No. 11-2; Def. Ex. A. As confirmed by the Government's witness, retired immigration official Michael Toms ("Toms"), the filing of an 1-130 does not itself grant an alien any legal status. Further proceedings are required before that can happen. A stamp on the 1-130 indicates that it was "approved" by immigration officials on August 6, 1998. ECF No. 11-2; Def. Ex. A. Toms testified that the notation "approved" means only that immigration officials confirmed the existence of a relationship between Segura and the individual who filed the 1-130 (his mother). Toms testified that, following such an approval, the alien would then be interviewed by immigration officials and would have to apply for an adjustment of his immigration status. The record shows that those steps did not happen in this case.[2]

         On January 6, 2001, Segura, then 19, was arrested in California and charged by information with four separate counts of engaging in "unlawful sexual intercourse with a minor. . .15 years old, [] who was more than three years younger than said person, in violation of [California] Penal Code Section 261.5(c), a felony."[3] Gov't Ex. 1. Each count also alleged that

in the commission of the above offense [Segura] personally inflicted great bodily injury upon [the minor], not an accomplice to the above offense, within the meaning of [California] Penal Code Section 12022.7 and also causing the above offense to be a serious felony within the meaning of [California] Penal Code Section 1192.7(c)(8).

Id. On March 23, 2001, Segura was convicted of one count of violating Cal. Penal Code § 261.5(c); the portion of the charge relating to "inflict[ing] great bodily injury" pursuant to Cal. Penal Code § 12022.7 appears to have been dropped, as were the other three counts. Id.; Gov't Ex. 2. Segura was sentenced to up to one year in prison. Id.

         Thereafter, immigration officials instituted expedited removal proceedings against Segura pursuant to 8 U.S.C. § 1228 ("Expedited removal of aliens convicted of committing aggravated felonies"). On August 16, 2001, the Immigration and Naturalization Service ("INS") prepared a Form 1-851, "Notice of Intent to Issue a Final Administrative Removal Order," (the "I-851 form"), in Segura's case. Gov't Ex. 2. The front page of the 1-851 form reflected that Segura had been "convicted in the Superior Court of California, in and for the County of Kern, for the offense of Unlawful Sexual Intercourse, in violation of Section 261.5(c) of the California Penal Code." Id. The 1-851 then informed Segura that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) "because you have been convicted of an aggravated felony as defined in. . .8 U.S.C. § 1101(a)(43)A."[4] Id.

         The I-851 form, written in English, [5] contains a "Your Rights and Responsibilities" section, which informed Segura that he could be represented by counsel during his removal proceedings; that he could respond to the charges in the 1-851 form within 10 calendar days of service of the 1-851 form;[6] and that he could seek "judicial review of any final administrative order by filing a petition for review within 30 calendar days after the date such final administrative order is issued, or you may waive such appeal by stating, in writing, your desire not to appeal." Gov't Ex. 2.

         On the back of the 1-851 form, the Certificate of Service reflects that it was served "in person" on Segura on August 17, 2001 by Michael Toms. Gov't Ex. 2. Below the Certificate of Service, Segura signed under a line that stated: "I acknowledge that I have received this Notice of Intent to Issue a Final Administrative Removal Order." Id. Segura's acknowledgment occurred on August 17, 2001 at 1 p.m. Id. In the middle of the back side of the 1-851 form, there is a section captioned: "I Wish to Contest and/or to Request Withholding of Removal" that contains several check boxes. Id. Segura did not select anything in that section. Instead, he filled out the bottom section of the 1-851 form, captioned: "I Do Not Wish to Contest and/or Request Withholding of Removal."[7] Id. In that section, Segura selected a check-box that read:

I admit the allegations and charge in this Notice of Intent. I admit that I am deportable and acknowledge that I am not eligible for any form of relief from removal. I waive my right to rebut and contest the above charges and my right to file a petition for review of the Final Removal Order. I wish to be deported to [Mexico].

Id. Below that, Segura selected a check-box that stated: "I also waive the 14 day period of execution of the Final Removal Order."[8] Id. Segura and Toms signed below these waivers, which were also dated August 17, 2001 at 1 p.m. Id.

         Thereafter, also on August 17, 2001, a Final Administrative Removal Order (the "2001 Final Order") was issued to Segura by the INS. See Gov't Exs. 3(a) and 3(b). The 2001 Final Order stated that Segura was deportable because: (1) he was not a citizen or national of the United States and was not lawfully admitted for permanent residence; (2) he had a final conviction for an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)A; (3) he was ineligible for discretionary relief; and (4) clear, convincing, and unequivocal evidence supported the decision. Id. It also reflected that "Petition for review" was "[w]aived by respondent." Id. Toms testified that this box would be selected where, as here, the alien chose not to contest deportation (as indicated on the 1-851 form). Id.; see also Gov't Ex. 2.

         At the evidentiary hearing, Toms further testified about the procedures by which the 2001 Final Order was served on Segura. First, Toms testified that he and Segura were located in Bakersfield, California, and that the INS official who was authorized to sign the 2001 Final Order was located in the Fresno, California INS office, some 100 miles away from Bakersfield. Second, Toms testified that he served the 2001 Final Order on Segura in person, which is reflected on the Certificate of Service, and gave a copy of this document to Segura. Gov't Ex. 3(a). That copy, however, had not yet been signed by the authorized INS signatory in Fresno. Third, Toms faxed the 2001 Final Order (with the completed Certificate of Service) to the authorized INS official in Fresno. Gov't Ex. 3(b). Fourth, the INS official in Fresno, Darvin Weirich, signed the 2001 Final Order and faxed it back to Toms in Bakersfield. Id. Lastly, Toms testified that, upon receiving the fax from Fresno, he would have provided a copy of the 2001 Final Order (signed by Weirich) to Segura and put another copy in the A-file.[9] See id.

         Once the 2001 Final Order had been finalized, a "Warrant of Removal/Deportation" ("Warrant of Removal") was issued for Segura on August 17, 2001. Gov't Ex. 4. Toms testified that the Warrant of Removal would have been filled out in Bakersfield and that then, Segura would have been transported to the border for deportation. The reverse side of the Warrant of Removal shows that Segura departed from the United States on foot to Mexico on August 18, 2001. Gov't Ex. 4. Before crossing the border, Segura signed the Warrant of Removal and his departure was witnessed and verified by an immigration official who also signed the Warrant of Removal. Id. At the time of his August 18, 2001 departure, Segura received a document informing him that he was "prohibited from entering, attempting to enter, or being in the United States. . .[a]t any time because you have been found deportable. . .and you have been convicted of a crime designated as an aggravated felony." Gov't Ex. 5. This document also informed Segura that thereafter he could petition the Attorney General for permission to enter the United States from outside the United States, but that, if he entered without such permission, he could be prosecuted under 8 U.S.C. § 1326. Id.

         Around December 1, 2003, Segura returned to the United States illegally. Gov't Ex. 6. The record establishes that immigration agent Miguel Munoz encountered Segura on April 9, 2004, while Segura was incarcerated at Calipatria State Prison in California.[10] Id. In a sworn statement to Agent Munoz, Segura acknowledged that he had been previously deported; that he had not sought the Attorney General's permission to re-enter the United States; and that he understood that he could face prosecution under 8 U.S.C. § 1326. Id. A "Notice of Intent/Decision to Reinstate Prior Order" (the "Reinstatement Order") was issued for Segura on April 9, 2004 to reinstate the 2001 Final Order. Gov't Ex. 7. Segura signed that document on April 20, 2004 and Immigration Officer Johnny Williams signed it on April 23, 2004. Id. When he signed the Reinstatement Order, Segura selected a check-box that read: "I. . .do not wish to make a statement contesting this determination." Id.

         A "Warrant of Removal/Deportation" was then issued, and Segura (pursuant to the 2001 Final Order) was removed from the United States to Mexico (on foot) on April 30, 2004. Gov't Ex. 9. Once again, Segura received (and signed for) a document warning him that he could not enter the United States without permission of the Attorney General and advising him of the consequences of illegally reentering the United States. Gov't Ex. 8.

         At a point unknown after April 30, 2004, Segura again illegally reentered the United States. He was arrested by Chesterfield County (Virginia) Police on October 12, 2018 for felony destruction of property and released on bond. ECF No. 12 at 7-8. He did not appear at his court hearing, and was arrested on December 13, 2018 for failure to appear. Id. Immigration officials encountered him on December 15, 2018 while he was in Chesterfield County Jail; he was taken into immigration custody at that time. Id. Thereafter, he was indicted for the presently pending illegal reentry charge. ECF No. 1.


         I. Framework For Collateral Challenges To Prior Deportation Orders

         Segura has been charged with illegal reentry under 8 U.S.C. § 1326(a) and (b)(2). To prove that charge, one of the elements that the Government will have to establish is that Segura "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); see also United States v. Guzman-Velasquez, 919 F.3d 841, 845 (4th Cir. 2019). 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." Moreno-Tapia, 848 F.3d 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). The Fourth Circuit has held that, to satisfy Section 1326(d)(3), 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 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, 356 F.Supp.3d 541, 547 (E.D. Va. 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.[11]

         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, collateral challenges in Section 1326 prosecutions must proceed pursuant to Section 1326(d) because of the clear statutory text and articulated Congressional intent.[12]Accordingly, if the Court determines that Segura has failed to satisfy any of the three elements of Section 1326(d), his collateral challenge must be rejected, and the Motion will be denied. Conversely, if Segura satisfies (or is excused from) ...

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