United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr. United States District Judge
jury indicted Efrain Avila Flores for illegal reentry in
violation of 8 U.S.C. § 1326. Flores now challenges the
validity of his underlying deportation order based on various
due process violations. Because Flores has not established
prejudice resulting from any alleged due process violation,
the Court will deny the motion to dismiss.
is a citizen of Guatemala. The government removed Flores in
May, 2012, after he had been in the United States for nine
years. At a deportation proceeding in April, 2012, an
immigration judge ("IJ") ordered Flores
removed. When the IJ asked whether Flores was
eligible for voluntary departure, the attorney for
Immigration and Customs Enforcement ("ICE")
responded that Flores was eligible. The IJ then asked Flores
whether anyone in the United States would be willing to
purchase him an airline ticket "that [Flores] can give
to immigration to deport [him] or to send [him] back to
Guatemala." (Dk. No. 18-1, at 2.) In response, the
following exchange occurred:
[Flores]: Deport, or voluntary?
IJ: Well, it'd be voluntary.
[Flores]: No, just deported.
(Id.) After the IJ signed the deportation order,
Flores asked, "how many years are you allowed to come
back in?" (Id.) In response, the IJ said,
"[t]hat's a great question for you to appear at the
U.S. Embassy in Guatemala City and ask them, because
they'll tell you." (Id.)
the deportation hearing, the government removed Flores to
Guatemala and served him with a notice that he was barred
from entering the United States for a period often years from
the date of his removal. Flores later reentered the Unites
States without having obtained permission. This prosecution
asserts five alleged due process violations in the
deportation proceeding: (1) failure to conduct a requested
bond hearing while Flores was held in immigration detention
for a month; (2) failure to advise about procedural rights
under the applicable regulations; (3) failure to advise about
voluntary departure; (4) application of an erroneous
voluntary departure standard; and (5) failure to maintain a
record of the deportation proceeding, given the
incompleteness of the tape recording.
Collateral Attack of a Deportation Order
deportation order is an element of the illegal reentry
offense. United States v. El Shami, 434 F.3d 659,
663 (4th Cir. 2005). A defendant may collaterally attack an
underlying deportation order in a criminal prosecution for
illegal reentry. United States v. Mendoza-Lopez, 481
U.S. 828, 839, (1987). if he satisfies three requirements.
El Shami, 434 F.3d at 663. He must show the
(1) he 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 ...