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United States v. Siles

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

July 5, 2019

UNITED STATES OF AMERICA
v.
LOURDES TERRAZAS SILES, a/k/a Lourdes Terrazas-Silas, Defendant.

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion to dismiss the one-count indictment charging Lourdes Terrazas Siles ("Terrazas Siles" or "defendant")[1] with unlawful reentry after removal in violation of 8 U.S.C. § 1326(a). The parties have fully briefed the motion, and the Court has heard oral argument. For the reasons stated in open court and as elaborated below, defendant's motion will be denied.

         I.

         Terrazas Siles is a native of Bolivia. In late 1999, when she was 20 years old, she set out to enter the United States by paying a "coyote"[2] to help her obtain a false passport and get into the United States. On December 5, 1999, she followed the coyote across a pedestrian bridge toward the pedestrian entrance of the U.S. border in San Ysidro, a district in San Diego, California. The coyote passed through the pedestrian turnstile and disappeared. Before Terrazas Siles could do the same, she was intercepted by an immigration officer. The officer determined that the passport defendant had attempted to present was fake and directed her to "secondary inspection" for "further investigation." Def.'s Mot. Ex. B [Dkt. No. 22-1].

         Under the applicable provisions of the Immigration and Nationality Act ("INA"), an alien who arrives at the U.S. border is deemed to be an applicant for admission to the United States. See 8 U.S.C. § 1225(a)(1). Defendant's application was processed by immigration officer R. Sorges II ("Sorges"), who conducted the proceedings in Spanish and recorded defendant's responses on an I-867A form. See Gov't's Opp'n Ex. 2 [Dkt. No. 23-1]. Before defendant was asked any questions, she was advised that Sorges was an officer of the U.S. Immigration and Naturalization Service; that she "d[id] not appear to be admissible or have the required legal papers authorizing ... admission to the United States"; that, as a result, she could be "denied admission and immediately returned to [her] home country without a hearing"; that if she were removed, she would be "barred from reentry for a period of 5 years or longer"; and that providing false testimony would subject her to civil or criminal penalties or further immigration consequences. Id. at 1. Defendant was further advised that "U.S. law provides protection to certain persons who face persecution, harm or torture upon return to their home country" and that if she had any such concerns, she should communicate them to Sorges, who would arrange for a confidential interview with an asylum officer. Id. Defendant told Sorges that she understood those advisements and was willing to answer questions. Id. at 1-2. She explained that she had paid the coyote $1500 for the false passport and for help getting her into the United States. Id. at 2. She claimed that she had intended to visit her uncle in Virginia for 10 days and then return to Bolivia, upon which time she would pay the coyote an additional $4500. Id. at 2-3. Defendant admitted knowing it was "illegal to present a document not lawfully issued to [her]" at the border. Id. at 2. She explained that she had no fear of returning to Bolivia and, when asked if she had anything further to add, stated that she "just want[ed] to find the man who left"- presumably the coyote who had abandoned her. Id. at 3. Sorges certified that the 1-867A form was read to defendant in Spanish, and defendant initialed each page to reflect that she had reviewed its contents.

         Based on defendant's conduct and statements, immigration authorities determined that she was inadmissible under "sections 212(a)(6)(c)(i) and 212(a)(7)(A)(i)(1) of the IN A." Def.'s Mot. Ex. B [Dkt. No. 22-1]; see 8 U.S.C. § 1182(a)(6)(C)(i) ("Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible."); Id. § 1182(a)(7)(A) ("[A]ny immigrant at the time of application for admission ... who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter ... is inadmissible."). The authorities ordered defendant removed from the United States under the INA's expedited removal provisions because she had presented false documentation, did not have any valid entry documents, and had not expressed any desire to apply for asylum or that she feared persecution upon return to Bolivia. See 8 U.S.C. § 1225(b)(1)(A)(i) ("If an immigration officer determines that an alien ... who is arriving in the United States ... is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum ... or a fear of persecution."). Defendant was held in immigration custody for approximately six weeks before being deported on January 27, 2000.

         At some unknown time after being removed, Terrazas Siles returned to the United States, slipped across the border undetected, and found her way to Virginia. There is no evidence in the record that she had any contact with immigration authorities for nearly 16 years. But she was unable to avoid encounters with local law enforcement. She was arrested and charged with domestic violence in Arlington, Virginia in 2001 (a charge that was ultimately nolle prossed); with shoplifting in Alexandria, Virginia in 2003; and with failure to appear in Prince William County, Virginia in 2004. In August 2016, defendant was arrested and charged with felony aggravated sexual battery by a parent, stepparent, grandparent, or stepgrandparent of a victim at least 13 years old but less than 18 years old. Authorities at the Prince William County Adult Detention Center, where defendant was held on the charge, contacted U.S. Immigration and Customs Enforcement ("ICE") officials about her immigration status. In June 2017, defendant was convicted in state court and sentenced to 20 years' incarceration with all but three years suspended. After she was released from state custody in early April 2019, she was arrested by ICE officials and turned over to the U.S. Marshals Service. On April 18, 2019, a federal grand jury in the Eastern District of Virginia returned a single-count indictment charging defendant with unlawful reentry after removal in violation of 8 U.S.C. § 1326, which makes it a felony punishable by up to two years' imprisonment for any noncitizen[3] who was previously denied admission to or removed from the United States to "enter[], attempt[] to enter, or [be] at any time found in ... the United States" without prior consent of the Attorney General or his designee. 8 U.S.C. § 1326(a).

         Defendant has moved to dismiss the indictment on three grounds: that this prosecution is barred by the statute of limitations; that her expedited removal was fundamentally unfair and cannot serve as the basis for the unlawful reentry charge; and that she never "entered" the United States during her 1999 encounter with immigration authorities and therefore cannot be said to have "reentered" the United States at a later date. None of these arguments is persuasive.

         II.

         The parties agree that the applicable statute of limitations for a § 1326 prosecution is five years. United States v. Uribe-Rios, 558 F.3d 347, 351 & n.5 (4th Cir. 2009) (citing 18 U.S.C. § 3282(a)). They likewise agree that the statute begins to run when the defendant is "found in ... the United States." 8 U.S.C. § 1326(a)(2). But they disagree over which party bears the burden of proof as to the statute of limitations, what standard of governmental awareness of a defendant's location inside the United States triggers the limitations period, and how those legal principles apply to this case. Even assuming that the government bears the burden of proof[4] and that constructive knowledge is enough to trigger the limitations period, [5] the record clearly demonstrates that this prosecution is timely.

         The government argues that Terrazas Siles was first "found in" the United States following her expedited removal when she was arrested and charged with aggravated sexual battery in August 2016. Defendant disagrees, arguing that the government was aware of her presence much earlier. A few of the dates she proposes can be rejected at the outset. First, she mentions, "[a]s an aside," that she had "interactions] with local law enforcement" in Virginia in 2001, 2003, and 2004. Def.'s Mot. 4 n.2. As the government correctly points out, the Fourth Circuit has rejected the notion that a run-in with local law enforcement, without more, puts the federal government on notice about a noncitizen's presence in the country. See Uribe-Rios, 558 F.3d at 356 ("[F]undamental principles of dual sovereignty do not allow us to impute the knowledge of state officials to federal officials.").

         Defendant also observes that her electronic immigration file features "activity" in November 2004, July and September 2007, and February and May 2008, suggesting that the government may have been aware of her presence in the country as of those dates. The government responds that all of those entries merely reflect clerical "updates to immigration databases" rather than genuine encounters with federal officials. See Gov't's Opp'n 3. Defendant appears to accept this explanation, see Def.'s Suppl. 4 ("taking as true the government's contentions that the references to 2004, 2007, and 2008 reflect data migration or computer updates"), and the Court finds no reason to doubt it.

         That leaves May 29, 2001, a date listed in defendant's immigration file as an "[e]ncounter" related to immigration "[e]nforcement." See, e.g., Def.'s Suppl. Ex. F [Dkt. No. 28-1]. Although Terrazas Siles does not claim that she actually interacted with federal immigration or law enforcement officials on or around that date, she posits that officials must have somehow become aware of her presence in the country. See, e.g., Def.'s Mot. 3-4 ("In May 2001, for reasons unknown to the defense, immigration database records show a law enforcement inquiry regarding [defendant]..., indicating an awareness of her presence in the United States at the time."); Def.'s Suppl. 3 ("Records produced [by the government] show that [defendant] was 'encounter[ed]' for enforcement purposes on May 29, 2001 [, meaning that] immigration officials had actual knowledge of [her] presence in the United States by [that date]." (third alteration in original) (quoting Def.'s Mot. Ex. E [Dkt. No. 22-1])). That claim does not withstand scrutiny. As part of its brief in opposition, the government submitted a declaration of ICE officer Kevin Ho ("Ho") explaining that the May 29, 2001 database record "appears to be a historical fingerprint enrollment entered into the system after the original date of [defendant's] encounter or apprehension for watchlist purposes only." Gov't's Opp'n Ex. 1 [Dkt. No. 23-1] ¶ 7; see id. ("The 'Activity Organization' section indicates 'DHS-US-VISIT-BSC This shows that the fingerprint from the previously closed case was being uploaded as a potential alert or watchlist if [defendant] came back to the United States."); see also Gov't's Suppl. Resp. 6-7 (explaining further the US-VISIT system and why the May 29, 2001 entry was simply the "date on which the defendant's fingerprints were uploaded to the US-VISIT system"); Addendum to Suppl. Resp. 1-2 (providing additional documentation). The government's explanation is convincing and, once credited, undercuts defendant's argument that federal authorities must have known she had returned to the United States as of May 2001.

         Defendant's attempts to sow doubt about the May 2001 data entries are unavailing. First, she highlights that the May 2001 event is described as an "[e]ncounter" related to "[enforcement" and the "WatchList." See Def.'s Suppl. 3-4 (quoting Id. Ex. F [Dkt. No. 28-1]). But the government has explained to the Court's satisfaction that those terms are simply computer codes related to data entry and do not support a finding of actual or constructive knowledge about defendant's presence in the United States. Second, she attempts to undercut Ho's declaration by pointing to April 2017 and November 2017 entries that "are expressly described as 'historical fingerprint enrollment.'" Id. at 4 (quoting Id. Ex. F [Dkt. No. 28-1]). Defendant argues that the government's electronic database "clearly had the capacity to designate an entry [as] 'historical fingerprint enrollment' if and when it was appropriate" and urges the Court to conclude that the May 2001 entry cannot have been such an enrollment. Id. Here, defendant ignores the fact that the May 2001 and 2017 entries were performed in completely different computer systems, see Gov't's Opp'n Ex. 1 [Dkt. No. 23-1] ¶¶ 5-6 (describing the transition from the Deportable Alien Control System to the Enforce Alien Removal Module system from 2007 to 2010), which likely had different data entry inputs. Moreover, although defendant relies on computer entries with minimal information, none of those entries provides any of the sort of information-including addresses, specific facts, assessments of immigration status or criminal consequences, and the like-that surely would have accompanied a genuine immigration arrest or encounter. See Id. ¶¶ 7-8 ("[I]f there had been an arrest or encounter by immigration officials on or about any of these dates, there would be documents verifying that arrest or encounter ...."). At bottom, defendant asks the Court to disbelieve the government's reasonable, consistent explanations and to speculate wildly about what the May 2001 data entries could represent. Such untethered speculation is an inappropriate basis upon which to dismiss an indictment.[6]

         Accordingly, defendant's argument that the federal government knew of her presence in the United States as of May 2001 is without merit. Because defendant was first "found in" the United States for purposes of § 1326(a) when local law enforcement officials informed ICE officials about her August 2016 arrest for aggravated sexual battery, this prosecution is timely.

         III.

         Defendant's second argument is styled as a collateral attack on her underlying removal proceeding pursuant to 8 U.S.C. § 1326(d), which requires her to demonstrate that (i) she "exhausted any administrative remedies that may have been available to seek relief against the order"; (ii) the removal proceedings "improperly deprived [her] of the opportunity for judicial review"; and (iii) the "entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). If defendant makes all three showings, her "illegal reentry ...


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