United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge.
matter is before the Court on the DEFENDANT'S MOTION TO
DISMISS THE INDICTMENT (ECF No. 10) (the "Motion"),
which, for the following reasons, was denied by an ORDER
entered on August 9, 2019 (ECF No. 32).
Lucas Garcia ("Lucas") was charged in a one-count
indictment with violating 8 U.S.C. § 1326(a) and (b)(1)
by reentering the country after having been removed. ECF No.
1. Lucas filed the Motion on May 21, 2019, and the parties
fully briefed it. The Court received evidence and heard oral
argument on the Motion on August 7, 2019,  and the Motion
was denied by an ORDER entered on August 9, 2019. ECF No. 32.
Factual Background 
is a citizen of Guatemala, and does not have legal status in
the United States. Lucas first entered the United States
legally on a work visa (the "visa") on December 12,
2004. Gov't Ex. 1. The Government's witness,
Deportation Officer Richard Tine ("Tine"),
testified that Lucas entered the United States through the
Atlanta, Georgia airport, on a visa that expired on July 15,
the expiration of the visa, Tine testified that there was no
record of Lucas leaving the United States. Then, on September
30, 2010, Lucas was convicted of felony forgery of public
records in violation of Va. Code § 18.2-168
(hereinafter, the "public records forgery" or
the" conviction") . Gov't Ex. 2. The offense
date for the conviction was July 13, 2008, and the record is
not clear why it took more than two years for Lucas to be
convicted. Lucas was sentenced to two years imprisonment with
one year and ten months suspended for the public records
Lucas was convicted of the public records forgery,
immigration officials began expedited removal proceedings
against him pursuant to 8 U.S.C. § 1228, which
establishes an administrative removal procedure for certain
aliens who have been convicted of "aggravated
felonies," as defined by the Immigration and Nationality
Act ("INA"). On December 6, 2010, immigration
officials served Lucas with a "Notice of Intent to Issue
a Final Administrative Removal Order," or Form 1-851
(hereinafter, the "I-851 form"). Gov't Ex. 3.
The 1-851 form is written entirely in English, and the
"Certificate of Service" shows that the 1-851 form
was "explained and/or served. . .to the alien in the
[English] language." Id.
front side of the I-851 form explained to Lucas that he was
not lawfully present in the United States; that he had been
convicted of an "aggravated felony," as defined by
8 U.S.C. § 1101(a)(43)(R); and that he was removable from
the United States pursuant to 8 U.S.C. §
1227(a)(2)(A)(iii). Gov't Ex. 3 at 1. The I-851 form also
notified Lucas that he could be represented by counsel; that
he could respond to the charges on the I-851 form; and that
he could remain in the United States for 14 days to file for
judicial review pursuant to 8 U.S.C. § 1252.
reverse side of the I-851 form shows that Deportation Officer
Long served the 1-851 form on Lucas in person and explained
it to him in English, as discussed above. Gov't Ex. 3 at
2. Lucas signed on a line indicating that he had received the
I-851 form. Id. Below that section, Lucas selected a
check box that stated: "I Do Not Wish to Contest and/or
to Respond to Request Withholding of Removal."
Id. Lucas then selected two check boxes below that.
First, he selected a box that read:
I admit the allegations and charge in this Notice of Intent.
I admit that I am deportable and acknowledge that I am not
eligible for any form of relief from removal. I waive my
right to rebut and contest the above charges. I do not wish
to request withholding or deferral of removal. I wish to be
removed to [Guatemala].
Id. Second, he selected a box that read: "I
understand that I have the right to remain in the United
States for 14 calendar days in order to apply for judicial
review. I do not wish this opportunity. I waive this
right." Id. Both Lucas and Long signed and
dated this section on December 6, 2010 at 10:45 a.m.
testified at the August 7, 2019 hearing about the usual
process of serving an I-851 form on an alien. Long explained
that he would take both an English and a Spanish version of
the I-851 form to his meeting with the alien, and would ask
which language the alien preferred. If an alien did not speak
English, Long would contact the so-called "language
line," a telephone number that provided interpreter
services and the I-851 form would be read by an interpreter.
if the alien spoke and understood English, it was Long's
practice to read the entire 1-851 form to the alien in
English. Long further testified that the fact that the 1-851
form was served by him on Lucas in English indicated to Long
(from his experience) that Lucas would have indicated that he
could read and understand English.
December 6, 2010, a "Final Administrative Removal
Order," or Form I-851A, was served on Lucas in person by
Long. Gov't Ex. 4 (hereinafter, the "2010 Final
Order"). The 2010 Final Order, signed by Assistant Field
Office Director Matthew Munroe ("Munroe"), informed
Lucas that the basis of his removal was his conviction for
an" aggravated felony" pursuant to 8 U.S.C. §
1101(a) (43) (R) (for the public records forgery) .
Id. The 2010 Final Order was also written in
English. Id. A "Warrant of
Removal/Deportation," or Form 1-205 (also in English),
was also issued for Lucas on December 6, 2010, and signed by
Munroe. Gov't Ex. 5.
December 20, 2010, Lucas was removed from the United States
pursuant to the 2010 Final Order. Gov't Ex. 5 at 2. When
he was removed, Lucas received a "Warning to Alien
Ordered Removed or Deported." Joint Ex. 1 at 6-L. That
form, written in English, informed Lucas that, because of his
removal for a "crime designated as an aggravated
felony," Lucas was prohibited from "entering,
attempting to enter, or being in the United
States"" [a] t any time." Id.
the December 20, 2010 removal, Lucas illegally returned to
the United States on an unknown date. Gov't Ex. 6. Lucas
was arrested and charged with a DWI (in violation of Va. Code
§ 18.2-266) in Chesterfield County, Virginia on June 26,
2018 (no disposition is listed). Id. at 4. Then, on
February 3, 2019, Lucas was arrested and charged in
Chesterfield County with identity theft (in violation of Va.
Code § 18.2-186.3); providing false identification to
law enforcement (in violation of Va. Code § 19.2- 82.1);
contempt of court (in violation of Va. Code § 18.2-456);
and another DWI (in violation of Va. Code § 18.2-266)
(no dispositions of these cases are in the record).
Id. at 3-4. He was indicted by the grand jury on the
illegal reentry charge on February 21, 2019, see ECF
No. 1, and was arrested on April 24, 2019. ECF No. 5.
Framework For Collateral Challenges To Prior Deportation
has been charged with illegal reentry under 8 U.S.C. §
1326(a) and (b)(1). To prove that charge, the Government will
have to establish, inter alia, that Lucas "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
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, 930 F.3d 350, 355-58 (4th Cir. 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 356. 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 358 (raising
"significant doubts" that the jurisdictional
argument raised by Cortez put him outside the requirements of
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:l9crlO, 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.
1:15cr59, 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
be dismissed as a matter of law." El Shami, 434
F.3d at 663 (citing Wilson).
collateral challenges in Section 1326 prosecutions must
proceed pursuant to Section 1326(d) because of the clear
statutory text and articulated Congressional
intent. Accordingly, if the Court determines
that Lucas has failed to satisfy any of the three elements of
Section 1326(d), his collateral challenge must be rejected,
and the Motion will be denied. Conversely, if Lucas satisfies
(or is excused from) the three elements of Section 1326(d),
the illegal reentry indictment must be dismissed. See El
Shami, 434 F.3d at 663.
makes two arguments in support of the Motion. See
ECF No. 10 at 2-30. First, he argues that his 2010 public
records forgery conviction was not an "aggravated
felony," and that immigration officials acted ultra
vires when they removed him on that basis. Second, he
argues that he can satisfy the collateral attack requirements
of 8 U.S.C. § 1326(d). The Government takes the opposite
view on both arguments. S ...