United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING DEFENDANT'S MOTION TO
E. Hudson, Senior United States District Judge.
August 7, 2018, the Grand Jury indicted Gustavo Perez-Paz
("Defendant") for being found in the United States
without having obtained the express consent for
re-application for admission into the United States from
either the Attorney General of the United States, or the
Secretary of Homeland Security, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). Contending that §
1326(a) is facially unconstitutional, Defendant moves to
dismiss the Indictment in this case, as well as the
underlying deportation order. The parties fully briefed the
issues, and the Court heard oral argument on September 19,
2019, during which the parties stipulated to the facts.
argues that the "found in" element of §
1326(a) renders the crime of illegal reentry an
unconstitutional status offense. As a result, Defendant
maintains that the Indictment relies on an unconstitutional
statute, and the use of his administrative deportation order
issued by an immigration judge as an element of a §
1326(a) offense violates his due process rights.
evidence revealed that Defendant is a Honduran citizen who
illegally entered the United States in 1991 without
inspection near San Ysidro, California. Federal authorities
became aware of Defendant's immigration status in 1993,
after he was convicted of selling or transporting a
controlled substance by a California state court. This
conviction is an aggravated felony under the Immigration and
Nationality Act ("INA"). See 8 U.S.C.
§ 1101(a)(43)(O). On August 30, 1993, Defendant was
found by the Immigration and Naturalization Service
("INS") while serving his sentence, and, following
removal proceedings, an Immigration Judge ordered that
Defendant be removed from the United States to Honduras on
December 6, 1994. Defendant was deported for the first time
on January 6, 1995. He did not request any administrative
relief or judicial review of the deportation order before he
later reentered the United States at an unknown date and
location. Thereafter, he was arrested in 2011 and charged
with illegal reentry following removal and conviction of an
aggravated felony. On April 13, 2012, Defendant pled guilty
to a single count of illegal reentry following removal, which
resulted from a conviction of an aggravated felony. As a
consequence, he was deported for a second time on July 23,
2013. Defendant subsequently reentered the United States
without authorization for a third time, and, on May 2, 2018,
Immigration and Customs Enforcement ("ICE") was
advised that he had been arrested on felony hit-and-run
charges in Chesterfield County, Virginia. Defendant is again
before this Court, charged with illegal reentry following
removal and conviction of an aggravated felony, in violation
of 8 U.S.C. §§ 1326(a), (b)(2). Defendant asserts
several facial challenges to the statute underlying his
order to convict a defendant of an offense under 8 U.S.C.
§ 1326(a), the government must demonstrate that the
defendant was previously "denied admission, excluded,
deported, or removed or  departed the United States while
an order of exclusion, deportation, or removal [was]
outstanding" and then subsequently "enter[ed],
attempted] to enter, or [was] at any time found in, the
United States" without proper authorization. 8 U.S.C.
§ 1326(a); United States v. Guzman-Velasquez,
919 F.3d 841, 844 (4th Cir. 2019) (quoting § 1326(a)).
Where a defendant's previous removal followed a
conviction of an aggravated felony, the criminal penalties
associated with the § 1326(a) prosecution may be
enhanced. § 1326(b)(2).
in such a prosecution, a defendant may collaterally attack
the previous deportation order, if such order serves as an
element of the offense charged, pursuant to 8 U.S.C. §
1326(d). There are, however, several preconditions. That
subsection states as follows:
In a criminal proceeding under this section, an alien may not
challenge the validity of the deportation order described in
subsection (a)(1) or subsection (b) unless the alien
(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). "These requirements are listed
in the conjunctive, so a defendant must satisfy all three in
order to prevail." United States v. El Shami,
434 F.3d 659, 663 (4th Cir. 2005) (quoting United States
v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003)).
"However, if the defendant satisfies all three
requirements, the illegal reentry charge must be dismissed as
a matter of law." Id.
challenge focuses on two arguments, both of which are purely
legal. First, Defendant argues that the "found in"
provision of § 1326(a) is an unconstitutional status
offense. (Def.'s Mot. 1-4, ECF No. 20; Def.'s Reply
1-5, ECF No. 27.) Second, Defendant contends that a law may
not constitutionally provide for an administrative
adjudication to be an element of a crime. (Def.'s Mot.
4-19, ECF No. 20; Def.'s Reply 5-7, ECF No. 27.) The
Court will address each argument in turn.
first contends that indictments in § 1326(a)
prosecutions are unconstitutional because § 1326(a) does
not require a volitional act. He claims that, in §
1326(a) prosecutions, the charges turn entirely on the
defendant's voluntary conduct (specifically, voluntary
reentry). Yet, § 1326(a) only includes the phrase
"found in," and Defendant maintains that the
absence of "voluntary reentry" from § 1326(a)