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United States v. Perez-Almeida

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

August 21, 2019



          Robert E. Payne, Senior United States District Judge.

         This matter is before the Court on DEFENDANT'S MOTION TO DISMISS COUNT ONE (ECF No. 20) (the "Motion to Dismiss"). For the reasons set forth below, the Motion to Dismiss will be denied.


         I. Procedural Context

         David Perez-Almeida ("Perez-Almeida") is charged in a three-count indictment with illegal reentry, pursuant to 8 U.S.C. § 1326(a) (COUNT I); possession of a firearm by an alien illegally and unlawfully in the United States, pursuant to 18 U.S.C. § 922(g)(5) (COUNT II); and possession of cocaine, pursuant to 21 U.S.C. § 844 (COUNT III). See ECF No. 3. He has moved to dismiss COUNT I (the "Motion to Dismiss") and to suppress evidence related to COUNTS II and III (the "Motion to Suppress") (collectively, the "Motions").[1] See ECF Nos. 19 and 20.

         The parties fully briefed both Motions, see ECF Nos. 19, 20, 22, 23, 25, 27, and the Court heard oral argument and received evidence on the Motions on June 18 and June 20, 2019.[2] Thereafter, the Court ordered the parties to submit supplemental briefing setting out their positions on both Motions in perspective of the evidence adduced during the evidentiary hearings. See ECF No. 39. The parties have submitted their supplemental briefing, and the Motion to Dismiss is ripe for decision.[3]

         II. Factual Background[4]

         Perez-Almeida is a citizen of Mexico who does not have legal status in the United States. See ECF No. 22 at 1-3. On August 8, 2002, Perez-Almeida was stopped by Border Patrol agents near the United States-Mexico border. Gov't Ex. 2. Because he did not have any outstanding warrants or prior immigration history, he was given the privilege of a so-called "voluntary return," and he immediately returned to Mexico (the return also appears to have occurred on August 8, 2002). Gov't Ex. 2; Hr'g Tr. 121 (testimony of Deportation Officer Richard Tine ("Tine")). Perez-Almeida confirmed that this "voluntary return" occurred. Hr'g Tr. 94-95.

         Shortly thereafter, on or about August 28, 2002, Perez-Almeida returned to the United States.[5] He worked on a dairy farm in Vermont. Hr'g Tr. 85, 90. On March 15, 2005, Perez-Almeida (then age 19), was encountered by New York State Police when the vehicle in which he was traveling broke down. Def. Ex. 1; Hr'g Tr. 86. Thereafter, Perez-Almeida and the other occupants were interviewed by Border Patrol Agents. Def. Ex. 1. In the interviews, all of the vehicle's occupants "freely admitted to be[ing] from Mexico and illegally in the United States." Id. Perez-Almeida and the other passengers were brought to the Border Patrol office in Champlain, New York. Id.

         On March 16, 2005, Perez-Almeida was personally served with a Form 1-862, or a Notice to Appear (hereinafter, the "NTA"). Gov't Ex. 3. The NTA informed Perez-Almeida (in English), [6] inter alia, that he is not a United States citizen or national; that he is a native of Mexico; that he had arrived in Texas on or about August 28, 2002; and then cited two provisions of the Immigration and Nationality Act ("INA") under which Perez-Almeida was subject to removal. Id. The NTA also informed Perez-Almeida that his immigration hearing would be "on a date to be set at a time to be set." Id. The hearing date was not set at the time of service of the NTA because the computer system was not working. Def. Ex. 1; Hr'g Tr. 89.

         On the NTA, Perez-Almeida's address was listed as "156 West Road Whiting Vermont 05778" (hereinafter, the "West Road address"). Gov't Ex. 3. The "Certificate of Service" on the NTA recites that Border Patrol Agent Catherine Edwards ("Edwards") "provided oral notice in the Spanish language of the time and place of his or her hearing and of the consequences of failure to appear."[7] Id. Perez-Almeida signed the "Certificate of Service" and his fingerprint is affixed thereto. Id.

         Edwards also served Perez-Almeida (on March 16, 2005) with a Form 1-826, or a "Notificacion de Derechos y Solicitud de Resolucion," explaining his rights, including his right to go before an immigration judge. Gov't Ex. 5; Def. Ex. 3. The Form 1-826 is written in Spanish and Edwards served it on Perez-Almeida in Spanish. Id. On the Form 1-826, Perez-Almeida indicated that he wanted a hearing before an immigration judge. Id.; Hr'g Tr. 87 (Perez-Almeida's testimony that he "wanted to see a judge").

         That same day (March 16, 2005), Edwards also provided Perez-Almeida with a Form 1-830, or a "Notice to EOIR: Alien Address," indicating that Perez-Almeida's address was the West Road address, [8]and that Edwards had advised Perez-Almeida of the requirement to update immigration officials of any change of address. Gov't Ex. 4. Perez-Almeida then was released on "personal recognizance," Gov't Ex. 4, pending his immigration hearing, notice of which would be mailed to the West Road address. Def. Ex. 1; Hr'g Tr. 89.

         Thereafter, on April 20, 2005, the immigration court in Buffalo, New York mailed a Notice of Hearing ("NOH") to Perez-Almeida at the West Road address. Def. Ex. 4; Gov't Ex. 6. The NOH, written in English, stated that Perez-Almeida's immigration hearing would take place on May 24, 2005 at 9:00 a.m. at the specified immigration court in Buffalo, New York. Id. The NOH also recited the consequences of failing to appear at the hearing, including that Perez-Almeida could be removed in absentia. Id.

         The "Certificate of Service" on the bottom of the NOH lists a handwritten date of service of April 20, 2004 (although the top of the form lists a printed date of April 20, 2005) . Id. The "Certificate of Service" indicates by the handwritten letter "M" that it was served by mail to Perez-Almeida, and by the handwritten letter "P" that it was personally served on Immigration and Naturalization Service ("INS") officials. Id.; Hr'g Tr. 134-35 (testimony of Officer Tine explaining that "M" signifies mail service and "P" signifies personal service). Officer Tine testified that the handwritten date of April 20, 2004 "would appear to be incorrect" based on other information on the form (e.g. the printed date at the top, the stamped date at the top, and the hearing date of May 24, 2005), and that the NOH appeared to have been generated on April 20, 2005. Hr'g Tr. 136.

         Perez-Almeida testified that he never received the NOH or any notice from the immigration court telling him about his immigration hearing. Hr'g Tr. 89-90; Def. Ex. 6 (affidavit of Perez-Almeida stating "I did not receive the Notice of Hearing, or any other mailings from the immigration court"). He further testified at the hearing that about 15 to 18 individuals were residing in the house in which he lived at the West Road address, Hr'g Tr. 92, and that all individuals in the house received mail in the same mailbox. Id. 90; see also Def. Ex. 8 (declaration of the Postmaster General that "mail addressed to various individuals is delivered to" the West Road address and that there "is only one physical mailbox for all of the residents who live at this address") . Perez-Almeida testified that if he had received notice of his immigration hearing, he would have gone to the hearing and requested to stay in the United States or to return to Mexico voluntarily. Hr'g Tr. 90-91.

         Perez-Almeida did not appear at the May 24, 2005 removal hearing, and was ordered removed to Mexico in absentia (the "2005 Removal Order"). Gov't Ex. 7. Immigration officials mailed to Perez-Almeida at the West Road address the Order of the immigration judge under a cover letter informing Perez-Almeida that his removal was final unless he filed a motion to reopen. Id.; Hr'g Tr. 137. The "Certificate of Service" for this letter (and the accompanying Order) states that it was served by mail to Perez-Almeida and personally served on INS officials on May 27, 2005 (three days after the immigration hearing). Gov't Ex. 7; Hr'g Tr. 137-38 (testimony of Officer Tine explaining service).

         As a result of the 2005 Removal Order, a Form 1-205, or "Warrant of Removal/Deportation," was issued for Perez-Almeida on June 7, 2005. Gov't Ex. 8. This document informs "any officer of the United States Immigration and Customs Enforcement" that Perez-Almeida "is subject to removal/deportation from the United States, based upon a final order by. . .an immigration judge in exclusion, deportation, or removal proceedings." Id. No. immediate action was taken to enforce the Form 1-205.

         Then, on September 28, 2005, Perez-Almeida was stopped by Vermont State Police for speeding. Def. Ex. 5; A-file 14-B;[9] Hr'g Tr. 91 (testimony of Perez-Almeida). The state trooper contacted the Border Patrol, which confirmed that Perez-Almeida had an outstanding removal order against him (the 2005 Removal Order). A-file 14-B. The trooper transported Perez-Almeida and a passenger to the police barracks; thereafter, immigration officials took custody of Perez-Almeida. Id. Perez-Almeida was informed that he had been removed in absentia earlier in the year. Hr'g Tr. 91-92. On October 18, 2005, Perez-Almeida was removed to Mexico (he departed on foot), pursuant to the 2005 Removal Order. Gov't Ex. 8; Hr'g Tr. 138. He did not seek to reopen his in absentia removal for lack of notice, [10] or otherwise challenge his removal in any way.

         After his October 2005 removal, Perez-Almeida again re-entered the United States without permission "[a]bout six months later, more or less." Hr'g Tr. 98 (testimony of Perez-Almeida). Perez-Almeida testified that he returned to the United States because "my life was here." Id. Perez-Almeida did not have a documented interaction with immigration officials again until August 20, 2014, when he was apprehended in Michigan. A-file 17-B. On August 21, 2014, Perez-Almeida was issued a Form 1-871, or "Notice of Intent/Decision to Reinstate Prior Order." Gov't Ex. 9. The Form 1-871 stated that Perez-Almeida was subject to removal pursuant to the May 24, 2005 removal order (i.e. that the 2005 Removal Order was to be reinstated). Id. Perez-Almeida acknowledged his receipt of the Form 1-871 on August 21, 2014. Id.

         Immigration official Shawn Wilson signed the Form 1-871, which provided that Perez-Almeida was "subject to removal through reinstatement of the prior order." Gov't Ex. 9. A "Warrant of Removal/Deportation" was issued for Perez-Almeida on September 2, 2014, and he was removed (on foot) to Mexico that same day. Gov't Ex. 11; Hr'g Tr. 143. During the 2014 reinstatement proceedings, Perez-Almeida was represented by counsel. Gov't Ex. 10; Hr'g Tr. 141.[11] Once again, he did not seek to challenge or reopen his 2005 Removal Order.

         Perez-Almeida then re-entered illegally once again, "approximately six or so months after being deported" in 2014 because "I had my children and my whole life was here, and I had to come back." Hr'g Tr. 99-100 (testimony of Perez-Almeida). He was not encountered by immigration officials again until his arrest on March 4, 2019 (the details of the traffic stop on March 4, 2019 are the subject of the Motion to Suppress). Perez-Almeida was then indicted by the grand jury on the three currently pending COUNTS on March 21, 2019. ECF No. 3.


         I. Framework For Collateral Challenges To Prior Deportation Orders

         In COUNT I, Perez-Almeida has been charged with illegal reentry under 8 U.S.C. § 1326(a). To prove that charge, the Government will have to establish, inter alia, that Perez-Almeida "has been denied admission, excluded, deported, or removed," and that, thereafter, he reentered the United States without the permission of the United States Attorney General. 8 U.S.C. § 1326(a). In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Supreme Court of the United States held that, in illegal reentry cases, an alien has a due process right to challenge the underlying deportation order. Thereafter, Congress codified the due process requirements in 8 U.S.C. § 1326(d). See United States v. Moreno-Tapia, 848 F.3d 162, 165-66, 169 (4th Cir. 2017); see also United States v. Guzman-Velasquez, 919 F.3d 841, 845 (4th Cir. 2019). At bottom, Section 1326(d) "is concerned with failures of due process in an immigration proceeding that would make it fundamentally unfair to rely on a removal order coming out of that proceeding." Moreno-Tapia, 848 F.3d at 169. The statute focuses the inquiry on whether there were "procedural defect[s] in an immigration proceeding [that] insulate[] the resulting order from judicial review. ..." Id.

         Section 1326(d) sets out three elements that an alien must prove to challenge the underlying deportation order. In full, that subsection reads:

In a criminal proceeding under this section [8 U.S.C. § 1326], an alien may not challenge the validity of the deportation order described in subsection (a) (1) or subsection (b) unless the alien demonstrates that-
(1) the alien 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 judicial review; and
(3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d) (emphasis added). The Fourth Circuit has held that, to satisfy Section 1326(d)(3), an alien "must show that (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." United States v. El Shami, 434 F.3d 659, 664 (4th Cir. 2005) (quoting United States v. Wilson, 316 F.3d 506, 510 (4th Cir. 2003)). To show prejudice, the alien must show that, "but for the errors complained of, there was a reasonable probability that he would not have been deported." Id. at 665. An alien may be excused from meeting certain Section 1326(d) requirements if the underlying deportation proceeding was procedurally flawed in a material way. See Moreno-Tapia, 848 F.3d at 169; United States v. Lopez-Collazo, 824 F.3d 453, 459-62 (4th Cir. 2016) (due process violation where alien was served the I-851 form in language he did not understand); El Shami, 434 F.3d at 662-64 (excusal from Sections 1326(d) (1) and (d) (2) and due process violation where alien did not receive notice of his immigration proceeding).

         It is evident from the statutory text that the defendant must satisfy (or be excused from) all three elements of Section 1326(d) to succeed in a collateral challenge. The Fourth Circuit's recent decision in United States v. Cortez, ___ F.3d ___, 2019 WL 3209956, *3-5 (4th Cir. July 17, 2019), confirms that view. There, the Court of Appeals held that, while typically, the existence of a prior removal order is sufficient to meet the government's burden in an illegal reentry case, "there is an exception, allowing a defendant to collaterally attack a removal order" when a flaw in the original proceedings prevented the alien from seeking review of the removal order at the time it was issued. Id. at *3. But, "[u]nder 8 U.S.C. § 1326(d), a noncitizen must make each of three showings to come within that exception and mount a collateral attack," citing the three requirements of Section 1326(d), discussed above. Id. (emphasis added); see also id. at *5 (raising "significant doubts" that the jurisdictional argument raised by Cortez put him outside the requirements of Section 1326(d)).

         The Fourth Circuit's approach outlined in Cortez confirms what this Court has held in several cases. See, e.g., United States v. Gonzalez-Ferretiz, No. 3:18-cr-117, 2019 WL 943388, *3-4 (E.D. Va. Feb. 26, 2019) (surveying Fourth Circuit and district court decisions and holding "that an alien may only challenge his underlying deportation order by satisfying the three requirements of Section 1326(d)"); see also Moreno-Tapia, 848 F.3d at 166; El Shami, 434 F.3d at 663; United States v. Gomez-Salinas, No.2:19crl0, 2019 WL 1141063, *2-4 (E.D. Va. Mar. 12, 2019) (Davis, C.J.) ("[A] defendant must satisfy all three provisions [of Section 1326(d)] before he may wage a collateral attack on the prior removal order."); United States v. Romero-Caceres, 356 F.Supp.3d 541, 547 (E.D. Va. 2018) ("[D]efendant here may not challenge the June 2007 Removal Order unless he meets all three § 1326(d) requirements.") .[12]

         The burden of proof to establish that the elements of Section 1326(d) have been satisfied "rests with the defendant." United States v. Galcia, No. I:15cr59, 2016 WL 4054926, *2 (E.D. Va. July 26, 2016). And, that burden must be met by "a preponderance of the evidence." Id. (citing several cases). If the alien meets his burden, "the illegal reentry charge must ...

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