United States District Court, E.D. Virginia, Norfolk Division
REBECCA BEACH SMITH, UNITED STATES DISTRICT JUDGE
matter comes before the court on Defendant's Motion to
Dismiss Indictment ("Motion"), filed on March 4,
2019. ECF No. 14. Defendant's Motion raises two
independent grounds for dismissal. Id. at 1. First,
Defendant asserts that the government failed to serve him
with a Notice of Hearing to give him actual notice of his
rescheduled removal hearing, which violated his right to due
process and prejudiced his ability to appear and defend
against his removal. Id. Second, Defendant asserts
that the immigration court did not have jurisdiction to issue
the Removal Order against him due to a defect in the Notice
to Appear. Id.
United States filed a Response to Defendant's Motion
("Response") on March 13, 2019. ECF No. 15.
Defendant filed a Reply to Government's Response
("Reply") on March 19, 2019, ECF No. 16, and a
Notice of Request for Hearing ("Request for
Hearing") on March 20, 2019, ECF No. 17. The United
States filed a Response Opposing Request for an Immediate
Hearing, requesting the court not hold an evidentiary hearing
until receipt of the complete record of proceedings before
the administrative immigration court ("record of
immigration proceedings"). ECF No. 18. On March 22,
2019, the court issued an Order granting Defendant's
Request for Hearing, to be held after receipt of the record
of immigration proceedings. ECF No. 19. On March 29, 2019,
the United States filed a Supplement to Response. ECF No. 20.
The Supplement to Response informed the court that on March
28, 2019, the United States received the record of
immigration proceedings. Id. at 1. Defendant's
Motion was set for a hearing on April 30, 2019.
April 18, 2019, the United States filed a Memorandum of Law
Regarding Attorney-Client Privilege and Communication of
Immigration Hearing Notification ("Memorandum of
Law"). ECF No. 23. On April 22, 2019, Defendant filed a
Notice ("Defendant's Notice"), informing the
court that he no longer proceeds on his "actual-notice
claim" because the record of immigration proceedings
includes a Notice of Hearing for the September 11, 2008
removal hearing. ECF No. 24 at 1 (citing ECF No. 20-6).
Defendant proceeds only on his jurisdictional claim.
Id. Defendant's Notice also indicated that he
believed an evidentiary hearing was no longer necessary.
Id. The United States filed a Response to
Defendant's Notice, requesting the court proceed with the
hearing to fully develop the record. ECF No. 25.
April 30, 2019, the court held the hearing. ECF No. 26. At
the hearing, the United States presented evidence, Defendant
confirmed his withdrawal of his "actual-notice claim,
"and the court heard arguments of counsel
regarding Defendant's jurisdictional claim. Id.
The matter is now ripe for decision.
following information is taken from the numerous exhibits
filed in this case, which include documents from
Defendant's immigration and state court records. The
parties do not dispute the authenticity and veracity of these
documents and the information contained therein. See
Mot. at 1-4; Resp. at 2-3.
is a citizen of Mexico who entered the United States without
authorization in April of 2003. Notice Appear at 1, ECF No.
15-5. On August 9, 2007, after immigration authorities took
him into custody, Defendant was personally served with a
Notice to Appear. Id. at 2. The Notice to Appear
alleged that Defendant was not a United States citizen and
had entered the United States without being inspected by
immigration authorities. Id. at 1. The Notice to
Appear ordered Defendant to appear for a hearing before an
immigration judge on March 27, 2008, at 9:00 A.M.
Id. The line for the address of the immigration
court on the Notice to Appear was left blank. Id.
interim, on August 23, 2007, Defendant was released on a
personal recognizance bond, which was signed by
Defendant, and which set forth the scheduled immigration
proceeding, indicating not only the date and time of the
proceeding, but also the location of the courthouse. Order
Release Recognizance, ECF No. 15-6. Defendant subsequently
retained counsel to represent him in the immigration
proceedings, and the immigration attorney filed a Notice of
Entry of Appearance as Attorney or Representative Before the
Immigration Court on March 13, 2008. ECF No. 14-3.
Defendant's immigration attorney requested a continuance
of the March 27, 2008 hearing. Mot. Continue, ECF No. 15-7.
The proceedings were continued to September 11, 2008, and a
new Notice of Hearing stating the time and place of the
hearing was sent to Defendant's immigration attorney.
Notice Hr'g, ECF No. 20-6.
August 15, 2008, Defendant's immigration attorney filed a
Motion to Withdraw as Counsel of Record ("Motion to
Withdraw"). ECF No. 20-4. In the Motion to Withdraw,
Defendant's immigration attorney stated that he had
"informed [Defendant] of this hearing in writing and in
person and ha[d] warned him of the consequences of failing to
appear." Id. at 3. The Motion to Withdraw was
granted by an Order of August 20, 2008. ECF No. 20-5.
April 30, 2019 hearing, the court heard testimony from
Defendant's immigration attorney, Mr. Hugo Valverde. Mr.
Valverde testified that the Motion to Withdraw reflected that
he had informed Defendant of the September 11, 2008 hearing
in writing and in person and had warned Defendant of the
consequences of failing to appear. The United States
requested Mr. Valverde produce the letter that Mr. Valverde
had sent to Defendant informing him of the September 11, 2008
Valverde asserted that attorney-client privilege applied to
the letter. The court ordered Mr. Valverde to produce the
letter for in camera review. Although almost all the
letter is in Spanish, a portion of the letter clearly states
the date, time, and location of the September 11, 2008
hearing. Gov't's Ex. 2. The United States and
Defendant agreed that "[c]ommunications between attorney
and client to inform the client of a court appearance are not
privileged communications." United States v.
Savage, No. 86-5618, 1987 WL 37528, at *2 (4th Cir. May
20, 1987) (citations omitted) ("The attorney is acting
as a conduit of information for the court, not providing
confidential legal advice. [The attorney's] statement
related to whether [the client] had notice of the bond
hearing-it did not disclose confidential information.").
Accordingly, the court overruled Mr. Valverde's assertion
of privilege as to the portion of the letter informing
Defendant of the September 11, 2008 hearing.
objected to admission of the entire letter on the basis that
the remaining portion of the letter may contain privileged
information. Without a certified English translation of the
remaining portion of the letter, which is in Spanish, the
court could not rule on Mr. Valverde's assertion of
privilege over that portion of the letter and Defendant's
objection to its admission. Thus, the court redacted the
remaining portion of the letter and admitted the redacted
version of the letter as Government's Exhibit 2. Mr.
Valverde and Ms. Carola Green, Defendant's Interpreter,
then each read all but the redacted portion of the letter
into the record in English, confirming that Mr. Valverde
provided Defendant with written notice of the date, time, and
location of the September 11, 2008 hearing.
on September 11, 2008, Defendant failed to appear for his
hearing, and the immigration judge ordered Defendant removed
in absentia. Removal Order, ECF No. 20-2. Defendant
was removed on July 30, 2010. R. Deportable/Inadmissible
Alien at 2, ECF No. 15-9. Defendant subsequently re-entered
the United States and was ...