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United States v. Perez-Paz

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

October 16, 2019

UNITED STATES OF AMERICA
v.
GUSTAVO PEREZ-PAZ, Defendant.

          MEMORANDUM OPINION (DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT)

          Henry E. Hudson, Senior United States District Judge.

         On 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.

         Defendant 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.

         The 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 was deported.

         Defendant 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).[1] Defendant asserts several facial challenges to the statute underlying his prosecution.

         In 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).

         Typically, 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 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). "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.

         Defendant's 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.

         Defendant 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) ...


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