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United States v. Guzman

United States District Court, W.D. Virginia, Charlottesville Division

July 17, 2019

United States of America,
Saul Quinteros Guzman, Defendant.



         This matter is before the Court on Defendant's Motion to Dismiss his Indictment for reentry of a removed alien in violation of 8 U.S.C. § 1326(a), seeking to collaterally attack the underlying expedited removal order pursuant to 8 U.S.C. § 1326(d). (Dkt. 29 at l; see Dkt. 39 at 1). The matter has been fully briefed and the Court held a hearing. For the reasons set out below, the Court will deny Defendant's Motion to Dismiss his Indictment.


         Defendant is a citizen of El Salvador who entered the United States on March 16, 2016 by crossing the Rio Grande River. (Dkt. 29-3 (Form I-867A (Record of Sworn Statement of Saul Ulises Quinteros-Guzman))). Immigration officials detained him shortly after crossing the border and placed him in expedited removal. On March 17, 2016, a Border Patrol Agent provided Defendant with the following advisement:

You do not appear to be admissible or to have the required legal papers authorizing your admission into the United States. This may result in your being denied admission and immediately returned to your home country without a hearing. . . . This may be your only opportunity to present information to me and the Department of Homeland Security to make a decision. . . . Except as I will explain to you, you are not entitled to a hearing or review.

(Dkt. 29-3). The advisement informed Defendant about United States law protecting certain persons who face persecution, harm or torture upon return to their home country. (Id.). Defendant consented to give a sworn statement and answered “No” when asked if he feared “that [he would] will be persecuted or tortured” if sent back to his home country (El Salvador). (Id.). Separately, Defendant answer in the negative when asked if he had any fear or concern about being returned to his home country or removed from the United States. He also replied in the negative when asked if he would be harmed if he returned to his home country or country of last residence. (Dkt. 29-3, Form I-867B (Jurat for Record of Sworn Statement)).

         On March 17, 2016, the Department of Homeland Security determined that the Defendant was inadmissible under the Immigration and Nationality Act (“INA”), and subject to removal because: (1) he was “not a citizen or national of the United States”; (2) he was “a native of EL SALVADOR and a citizen of EL SALVADOR”; and (3) he was “an immigrant not in possession of a valid unexpired immigration visa, reentry permit, border crossing card, or other valid entry document required by the Immigration and Nationality Act.” (Dkt. 29-2 (Form I-860, Determination of Inadmissibility)).

         On March 18, 2016, Defendant was given an additional advisement specific to citizens of El Salvador, which he acknowledged receiving. This advisement informed Defendant that if he was found to have a credible fear of persecution if returned to El Salvador he could obtain a lawyer to represent him in front of an immigration judge and that he would be provided a list of lawyers who would speak with him at a very low or no cost. (Dkt. 29-5). Defendant declined to pursue this option. (Id.). Neither the Government nor the Defendant have brought to the Court's attention any other removal proceeding document which may have provided notice of a right to counsel beyond that identified in the March 18, 2016 advisement.

         On March 18, 2016, Defendant was found to be inadmissible as charged based on the determination of inadmissibility noted above and evidence presented during inspection or examination, and was ordered to be removed from the United States. (Dkt. 29-2 (Form I-860, Order of Removal)). Defendant was subsequently removed on March 31, 2016. (Dkt. 29-1). Defendant was informed that he was prohibited from entering, attempting to enter, or being in the United States, for a period of 5 years from the date of his departure from the United States due to his being found to be inadmissible as an arriving alien. (Id.).

         On November 20, 2018, the Grand Jury indicted Defendant for a violation of 8 U.S.C. § 1326(a). The Grand Jury charged that on or about October 17, 2018, within the Western District of Virginia, Saul Quinteros Guzman, an alien who was removed from the United States on or about March 31, 2016, was found in the United States without having obtained the express consent of either the Attorney General of the United States or the Secretary of the Department of Homeland Security to reapply for admission into the United States. (Dkt. 12).


         Criminal defendants may allege defects in indictments in pretrial motions, including “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). An indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). A court “should regard all well pleaded facts as true when considering a motion to dismiss an indictment.” United States v. Dove, 70 F.Supp.2d 634, 636 (W.D. Va. 1999). Motions to dismiss indictments, therefore, should generally be denied unless the defendant demonstrates that “the allegations therein, even if true, would not state an offense.” United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004).

         To obtain a conviction under 8 U.S.C. § 1326(a), the Government must show that the defendant is an “alien who - (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding and thereafter (2) enters, attempts to enter, or is at any time found in, the United States, ” with certain exceptions not applicable here. A valid “deportation order is an element of the offense of illegal reentry.” United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005).

         III. ANALYSIS

         The parties dispute whether Defendant can collaterally attack the validity of Defendant's 2016 expedited removal order and, if so, the proper outcome of that collateral attack.[1] Defendant's motion to dismiss is based on a collateral attack to prosecution under 8 U.S.C. § 1326(d). (Dkt. 29 at 1). The Defendant was previously removed from the United States pursuant to an expedited removal proceeding. He now argues that under United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987), a person charged with a violation of § 1326 has a due process right to judicial review of the predicate expedited removal “in any subsequent proceeding in which the result of the [earlier] deportation proceeding is used to establish an element of a criminal offense.” (Dkt. 29 at 2-3 (quoting Mendoza-Lopez)). Defendant argues that the scope of Mendoza-Lopez includes an expedited removal proceeding, and review of the predicate removal order may be undertaken pursuant to 8 U.S.C. § 1326(d). He further argues that, upon judicial review, the Court should find that the prior removal was invalid because it was fundamentally unfair.

         Before examining the arguments of the parties, the Court will review relevant provisions of the United States Code and related regulations. Under 8 U.S.C. § 1225(b)(1) (“Expedited Removal Statute”) and its companion regulations, at the time of Defendant's 2016 removal two classes of aliens were subject to expedited removal if immigration officers determined they were inadmissible due to misrepresentation of a material fact in seeking a visa, other documentation or admission to the United States or due to a lack of immigration entry papers: (1) aliens “arriving in the United States”; and (2) aliens encountered within 14 days of entry without inspection and within 100 air miles of any U.S. international border. 8 U.S.C. § 1225(b)(1)(A)(i) & (iii); 8 C.F.R. § 235.3(b)(1); Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 2004 WL 1776983 (effective Aug. 11, 2004).

         In such cases and upon proper findings, the immigration officer “shall order the alien removed from the United States without further hearing or review” unless the alien indicates an intention to apply for asylum or a fear of persecution upon return to his or her country. In cases where an alien indicates that intention or fear, the immigration officer must refer the alien for an interview by an asylum officer. 8 U.S.C. § 1225(b)(1)(A)(i), (ii).

         In every case in which the expedited removal proceedings will be applied and before removing an alien, the examining immigration officer must create a record of the facts of the case and statements made by the alien. This is accomplished by means of a sworn statement using Form I-867AB. The examining immigration officer must read (or have read) all the information on Form I-867A to the alien (including the determination to be made, allegations of removability, citizenship, and the like). If the alien is willing to answer questions and give a statement, the examining immigration officer shall record the alien's response to the questions contained on Form 1-867B, and the alien shall sign and initial each page of the statement. 8 C.F.R. § 235.3(b)(2)(i).

         Further, the examining immigration officer must advise the alien of the charges against him or her on Form I-860 (Notice and Order of Expedited Removal), and the alien must be given an opportunity to respond to those charges in the sworn statement. 8 C.F.R. § 235.3(b)(2)(i), (b)(7). Interpretative assistance must be used if necessary to communicate with the alien. Id.

         Under Section 1225, “an alien who ‘arrives in the United States,' or ‘is present' in this country but ‘has not been admitted,' is treated as ‘an applicant for admission.'” Jennings v. Rodriguez, ___ U.S. ___, 138 S.Ct. 830, 836-37 (2018) (citing § 1225(a)(1)). “Applicants for admission” must “be inspected by immigration officers” to ensure they may be admitted into the country consistent with U.S. immigration law. 8 U.S.C. § 1225(a)(3). The immigration officer (exercising delegated authority from the Attorney General) may, in his or her discretion, permit any alien applicant for admission to withdraw his or her application for admission in lieu of expedited removal proceedings under 8 U.S.C. § 1225(b)(1). 8 C.F.R. § 235.4; see 8 U.S.C. § 1225(a)(4). The regulations further state that the “alien's decision to withdraw his or her application for admission must be made voluntarily, but nothing in this section shall be construed as to give an alien the right to withdraw his or her application for admission.” 8 C.F.R. § 235.4.

         A. Defendant May Bring a Challenge to the Validity of an 8 U.S.C. § 1225 Expedited Removal Order in a Prosecution under 8 U.S.C. § 1326(a)

         The threshold question is whether Defendant is entitled to bring a collateral challenge to the validity of his prior expedited removal order on which the § 1326(a) offense is based. Although 8 U.S.C. § 1326(d) provides for a limited judicial review of the underlying order, another section of Title 8 of the United States Code excludes jurisdiction of courts to hear any claim attacking an expedited removal order:

Limit on collateral attacks-In any action brought against an alien under section 1325(a) of this title or section 1326 of this title, the court shall not have jurisdiction to hear any claim attacking the validity of an order of removal entered under subparagraph (A)(i) or (B)(iii).

8 U.S.C. § 1225(b)(1)(D) (emphasis added). The reference to “subparagraph (A)(i)” is to 8 U.S.C. § 1225(b)(1)(A)(i), which applies to arriving aliens and to aliens who had not been admitted or paroled into the United States and who have not affirmatively shown they have been in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility. The Attorney General, as noted above, included aliens “encountered within 14 days of entry without inspection and within 100 air miles of any U.S. international border” as subject to expedited removal at the time of Defendant's 2016 expedited removal proceedings.

         Defendant contends § 1225(b)(1)(D) contradicts the Supreme Court's holding that its cases establish that “where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding.” (Dkt. 29 at 3 (quoting Mendoza-Lopez v. United States, 481 U.S. 828, 837-38 (1987) (emphasis in original))). Defendant asserts that to the extent § 1225(b)(1)(D) precludes that review, there is a direct conflict with Mendoza-Lopez and the constitutional principle prevails over the statute. Defendant notes, however, that before reaching the question of constitutionality, this Court should apply the doctrine of ...

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