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United States v. Perez

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

August 29, 2019

United States of America,
Antonio Paredes Perez, Defendant.



         Senior Judge Norman K. Moon 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. 32 at 1). For the reasons set out below, the Court will deny Defendant's Motion to Dismiss his Indictment.


         Defendant is a citizen of Mexico. He does not claim to be a citizen of the United States. Defendant first came to the United States from Mexico in 2005 when he was approximately 13 years of age. (Dkt. 32, Ex. 3; Dkt. 39, Ex. 5). On February 24, 2005, he was detained at the border but was permitted to voluntarily return to Mexico. (Dkt. 32 at 1). He was subsequently detained a second time on March 21, 2013. (Dkt 32, Ex. 1; Dkt. 39 at 1, Ex. 5). An expedited removal order was issued March 26, 2013, and he was removed on March 27, 2013. (Dkt. 32, Ex. 1). When Defendant attempted another return, his prior expedited removal order was reinstated on October 23, 2013, and he was removed October 24, 2013. (Dkt. 32, Ex. 2). Defendant subsequently returned to and remained in the United States. (Dkt. 39, Ex. 5).

         The Defendant's expedited removal order from March 2013 found that he was inadmissible under Immigration and Nationality Act (“INA”) Section 212(a)(7)(A)(i)(I) (8 U.S.C. § 1182(a)(7)(a)(i)(I)) (“Documentation requirements”), in that “[y]ou are not a citizen or national of the United States, ” “[y]ou are a native of MEXICO and a citizen of MEXICO, ” and “[y]ou are an immigrant not in possession of a valid immigration visa, reentry permit, border crossing card, or other valid entry document required by the Immigration and Nationality Act.” (Dkt. 32, Ex. 1). As part of the expedited removal process, a Notice of Rights indicates that Defendant was read, in Spanish, the fact that he had a right to a hearing before an Immigration Judge, and that if he wanted a hearing he could retain counsel or other legal representative to assist him. (Dkt. 32, Ex. 4). He was read the fact that he had a right to contact a lawyer to represent him at the hearing or to answer any questions about his rights under the law of the United States. In response, Defendant placed his initials by the option to admit he was in the United States illegally, that he was not in danger in returning to his home country, and renounced his right to a hearing before the Immigration Court. Defendant then signed the statement. (Dkt. 32, Ex. 4).

         Defendant subsequently made a sworn statement which was taken by a Border Patrol Agent who included the following prior 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. 32, Ex. 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 answered “NO” when asked if he had any fear or concern about being returned to his home country or being removed from the United States and “NO” when asked if he would be harmed if he was returned to his home country or country of last residence. (Dkt. 32, Ex. 3).

         Defendant was indicted under 8 U.S.C. § 1326(a) on November 20, 2018. The Grand Jury charged that on or about October 16, 2018, in the Western District of Virginia, Antonio Paredes Perez, an alien who was removed from the United States on or about March 27, 2013 and October 23, 2013, was found in the United States without having obtained the express consent of the Attorney General of the United States and the Secretary of the Department of Homeland Security to reapply for admission into the United States. (Dkt. 18).


         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).

         Defendant was indicted for a violation of Title 8, United States Code, Section 1326(a), Reentry of removed aliens. To obtain a conviction under 8 U.S.C. § 1326(a), the Government must prove beyond a reasonable doubt 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 expedited removal order and, if so, the proper outcome of that collateral attack. Defendant's motion to dismiss is based on a collateral attack to prosecution under 8 U.S.C. § 1326(d). (Dkt. 32 at 1). The Defendant was previously removed from the United States by order pursuant to an expedited removal proceeding.[1] He now argues that under United States v. Mendoza-Lopez, 481 U.S. 828, 838-39 (1987), a person charged with a violation of Section 1326 has a due process right to judicial review of the predicate expedited removal “in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of the criminal offense.” (Dkt. 32 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 2013 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 Collateral Challenge to an 8 U.S.C. § 1225(b)(1) Expedited Removal in a Prosecution under 8 U.S.C. § 1326(a)

         The threshold question is whether Defendant is entitled to bring a collateral challenge to his prior expedited removal in challenging the Indictment. The Court concludes Defendant may collaterally attack an expedited removal order in an 8 U.S.C. § 1326(a) prosecution for the reasons stated in the Court's opinion in United States v. Quinteros Guzman, No. 3:18-cv-00031-1, 2019 WL 3220576 (W.D. Va. July 17, 2019), and in the Fourth Circuit's subsequent decision in United States v. Villarreal Silva, 931 F.3d 330 (4th Cir. 2019).

         The issue arises because 8 U.S.C. § 1225(b)(1)(D) strips courts of jurisdiction in proceedings under § 1326(a) “to hear any claim attacking the validity of an order of removal” entered under the expedited removal provision of § 1225(b)(1)(A)(i). This Fourth Circuit in Silva concluded that it could not hear the merits of a defendant's attack ...

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