United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge.
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.
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"). See ECF Nos. 19 and 20.
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. 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.
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.
thereafter, on or about August 28, 2002, Perez-Almeida
returned to the United States. 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.
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),  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.
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." Id. Perez-Almeida signed the
"Certificate of Service" and his fingerprint is
affixed thereto. Id.
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
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, 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.
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.
"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.
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.
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).
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.
on September 28, 2005, Perez-Almeida was stopped by Vermont
State Police for speeding. Def. Ex. 5; A-file
14-B; 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,  or otherwise challenge his
removal in any way.
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,
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. Once again, he did not seek to challenge
or reopen his 2005 Removal Order.
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.
Framework For Collateral Challenges To Prior Deportation
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.
1326(d) sets out three elements that an alien must prove to
challenge the underlying deportation order. In full, that
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
(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).
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)).
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)
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