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. 11)
which, for the following reasons, will be denied.
Segura-Virgen ("Segura") 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.
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.
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.
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." Gov't Ex. 1. Each count also
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.
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. §
I-851 form, written in English,  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; 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.
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." 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." Id. Segura and Toms
signed below these waivers, which were also dated August 17,
2001 at 1 p.m. Id.
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.
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. See id.
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. §
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. 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."
"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.
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.
Framework For Collateral Challenges To Prior Deportation
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.
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). 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).
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
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).
collateral challenges in Section 1326 prosecutions must
proceed pursuant to Section 1326(d) because of the clear
statutory text and articulated Congressional
intent.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) ...