United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
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.
FACTS AND PROCEDURAL HISTORY
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).
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).
subsequently made a sworn statement which was taken by a
Border Patrol Agent who included the following prior
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).
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).
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).
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).
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. 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
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).
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).
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.
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.
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)
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).
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 ...