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United States v. Flores

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

July 8, 2019

UNITED STATES OF AMERICA,
v.
EFRAIN AVILA FLORES, Defendant.

          OPINION

          John A. Gibney, Jr. United States District Judge

         A grand 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.

         I. BACKGROUND

         Flores 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.[1] When the IJ asked whether Flores was eligible for voluntary departure, the attorney for Immigration and Customs Enforcement ("ICE") responded that Flores was eligible.[2] 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.
IJ: No?
[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.)

         After 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 followed.

         Flores asserts five[3] 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.

         II. DISCUSSION

         A. Collateral Attack of a Deportation Order

          A 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 following:

(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 ...

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