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United States v. Garcia

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

September 3, 2019



          Robert E. Payne, Senior United States District Judge.

         This 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).


         I. Procedural Context

         Anibal Lucas Garcia ("Lucas")[1] 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, [2] and the Motion was denied by an ORDER entered on August 9, 2019. ECF No. 32.

         II. Factual Background [3]

         Lucas 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, 2005.[4]

         Following 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 forgery.[5] Id.

         After 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."[6] Id.

         The 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);[7] 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. Id.

         The 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].[8]

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. Id.

         Long 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.

         However, 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.

         Also on 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.

         On 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.

         After 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.


         I. Framework For Collateral Challenges To Prior Deportation Orders

         Lucas 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.

         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, 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 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: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) requirements.").[9]

         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. 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).

         In sum, collateral challenges in Section 1326 prosecutions must proceed pursuant to Section 1326(d) because of the clear statutory text and articulated Congressional intent.[10] 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.

         II. Analysis

         Lucas 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 ...

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