United States v. Sanchez

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Bonifacio Fernandez Sanchez's Motion to Dismiss the Indictment. Dkt. 37. On September 26, 2018, the Government indicted Fernandez Sanchez on one count of illegal reentry in violation of 8 U.S.C. § 1326(a). Dkt. 15. Fernandez Sanchez now moves this Court to dismiss the indictment against him on two grounds, both based on an allegedly invalid prior removal order, which is a necessary element for a § 1326(a) conviction. First, Fernandez Sanchez argues that notice provided to him to appear at his prior removal proceeding failed to contain information necessary to establish the immigration court's jurisdiction. Dkt. 37. Second, Fernandez Sanchez argues that the prior removal should be deemed invalid pursuant to 8 U.S.C. § 1326(d). Id. For the reasons stated herein, the Court will grant Fernandez Sanchez's motion and dismiss the indictment against him pursuant to § 1326(d).

         I. Factual Background

         Fernandez Sanchez first entered the United States in 2006. Dkt. 46 at 1. That year, he was arrested in Virginia for driving under the influence by the Harrisonburg Police Department. Id. As Fernandez Sanchez was in the country without legal authorization, the Harrisonburg Police Department referred him to Immigration and Customs Enforcement (“ICE”). Id. On May 12, 2011, while in ICE detention, the Government served Fernandez Sanchez with a Notice to Appear (“NTA”) before an immigration court for removal proceedings. Id. This NTA did not include the time, date or location of the hearing, ^[1] nor did it identify the court in which the NTA would be filed. Id. The NTA listed certain procedural entitlements, such as the ability to obtain legal representation, the right to present witnesses and evidence, and the right to examine the Government's evidence. Dkt. 37-1. The NTA also stated that “[a]t the conclusion of your hearing, you have a right to appeal an adverse decision by the immigration judge.” Id. The NTA was in English, which Fernandez Sanchez does not speak, and Defendant claims that the NTA was never translated to him in Spanish.^[2] Id. The same day he was served with the NTA, Fernandez Sanchez also received a “notification of rights and request for resolution” form in Spanish, through which he requested a hearing before an immigration judge (“IJ”). Dkt. 37-2.

         On June 30, 2011, Fernandez Sanchez was taken from custody to his hearing before an immigration judge.^[3] Dkt. 37 at 2. This removal hearing lasted for approximately four minutes. Dkt. 37 at 12. The IJ asked Fernandez Sanchez through an interpreter if he “wished to find an attorney to contest the case, or return to Mexico, ” and Fernandez Sanchez replied that he would return to Mexico. Dkt. 46 at 2. The IJ then asked him if he had money to return to Mexico on his own, and Fernandez Sanchez stated that he did not. Id. The IJ then concluded the hearing and ordered him removed. Id.

         Fernandez Sanchez was later found in and removed from the United States on January 31, 2013, and again on February 21, 2013. Dkt. 46-3, 46-4. During these subsequent removals-which Fernandez Sanchez made no apparent effort to contest-the 2011 deportation order was reinstated. Dkt. 37 at 2.

         On August 21, 2018, Sanchez was arrested in Charlottesville, Virginia, again for driving under the influence. Dkt. 46 at 2. He was taken to Charlottesville-Albemarle Regional Jail then transferred to ICE custody. Id. On September 26, 2018, Fernandez Sanchez was indicted on one count of illegal reentry in violation of 8 U.S.C. § 1326(a). Dkt. 15. Fernandez Sanchez now moves to dismiss this indictment, arguing that the immigration court lacked jurisdiction when it ordered Fernandez Sanchez removed in 2011. Dkt. 37. Alternatively, Fernandez Sanchez argues that his 2011 removal proceeding should be declared invalid under 8 U.S.C. § 1326(d). Id. The Government opposes the motion. Dkt. 46. The matter is now fully briefed and ripe for review.

         II. Legal Standard

         Criminal defendants may allege defects in indictments in pretrial motions, including “(i) joining two or more offenses in the same count (duplicity); (ii) charging the same offense in more than one count (multiplicity); (iii) lack of specificity; (iv) improper joinder; and (v) failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B). An indictment must contain a “plain, concise and definite written statement of the essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1); see also United States v. Daniels, 873 F.2d 272, 274 (4th Cir. 1992) (“An indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense.”). A reviewing 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). A court should not dismiss an indictment on the basis of “facts that should” be “developed at trial.” United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012). Rather, motions to dismiss indictments should generally be denied unless “the allegations therein, even if true, would not state an offense.” United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004).

         Collateral attacks of deportation orders are authorized where, as here, those orders are necessary to establish an element of the charged illegal reentry offense.^[4] See United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987) (review of deportation proceeding must be “made available in any subsequent proceeding in which the result of the deportation proceeding is used to establish an element of a criminal offense”); United States v. Villareal Silva, 931 F.3d 330, 335 (4th Cir. 2019) (“We conclude that when an expedited removal is alleged to be an element in a criminal prosecution, the defendant in that prosecution must, as a matter of due process, be able to challenge the element -i.e., to contend that the removal was invalid - if he did not have the prior opportunity to do so.”). “In this context-the context of an alien's collateral attack of a removal order-courts can and do consider motions to dismiss indictments that necessarily amount to more than mere facial challenges to the indictments' sufficiency.” United States v. Silvestre-Gregorio, No. 2:18-cr-00155-JRG-CLC, 2019 WL 2353215, at *9 (E.D. Tenn. June 3, 2019); see also Mendoza-Lopez, 481 U.S. at 837-39 (requiring “some meaningful review” of the prior deportation proceeding in the motion to dismiss posture).

         Under § 1326(d), a defendant mounting a collateral attack against an underlying deportation order must show that (1) he “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” him of the “opportunity for judicial review”; and (3) entry of the order was “fundamentally unfair.” If a “defendant satisfies all three requirements, the illegal reentry charge must be dismissed as a matter of law.” El Shami, 434 F.3d at 663; Villareal Silva, 931 F.3d at 337.

         III. Analysis

         Fernandez Sanchez raises two grounds for collaterally attacking the indictment against him. First, he alleges that the NTA's failure to identify the immigration court in which the removal order was filed was a fatal jurisdictional defect, and thus the immigration court lacked subject matter jurisdiction in its 2011 removal. Fernandez Sanchez claims that such a defect allows him to deviate from the statutorily provided method of collateral attack provided by § 1326(d). Second, Fernandez Sanchez alleges that the 2011 removal should be deemed invalid pursuant to § 1326(d). Because the Court concludes the 2011 removal was indeed invalid pursuant to § 1326(d), the Court will dismiss the indictment against Fernandez Sanchez on those grounds and decline to reach his jurisdictional argument.

         A. Fernandez Sanchez's § 1326(d) Collateral Attack

         Fernandez Sanchez identifies a multitude of shortcomings in his four-minute 2011 removal proceeding, ^[5] but in meeting the three elements of § 1326(d), two alleged errors are relevant: the failure to properly advise Fernandez Sanchez of the right to appeal the IJ's decision, and the failure to properly advise him of his apparent eligibility for pre-conclusion voluntary departure. Fernandez Sanchez claims that the former satisfies the first two elements of § 1326(d)-exhaustion of administrative remedies and denial of opportunity for meaningful judicial review-while the latter violation rendered the 2011 removal fundamentally unfair. The Court will take these arguments in turn.

         1. Exhaustion and Judicial Review

         Fernandez Sanchez claims that because he was never properly apprised of his right to appeal, he was denied the opportunity to exhaust administrative remedies or obtain meaningful judicial review, thus satisfying the first two requirements of § 1326(d).

         An invalid waiver of the right to appeal deprives an alien of judicial review, and similarly, an invalid waiver excuses an alien's failure to exhaust any administrative remedies. Mendoza Lopez, 481 U.S. 828, 840; see also United States v. Ortiz, 488 Fed.Appx. 717, 718 (4th Cir. 2012) (unpublished) (“Courts have generally held that the exhaustion requirement of § 1326(d)(1) must be excused where an alien's failure to exhaust results from an invalid waiver of the right to an administrative appeal.”) (internal quotations, citations, and alterations omitted). As the Fourth Circuit has written, “[t]he Supreme Court [has] held that an immigration judge's failure to advise the alien of his right to apply for [alternative relief] and to ensure that the alien's waiver of his right to appeal the deportation order constituted a complete deprivation of administrative and judicial review within the meaning of section 1326(d).”^[6] El Shami, 434 F.3d at 664 (citing Mendoza-Lopez, 481 U.S. at 840).

         Although the NTA provided to Fernandez Sanchez advised him of his ability to “appeal an adverse decision by the immigration judge, ” Dkt. 37-1, the Government does not appear to dispute Fernandez Sanchez's contention that it was not provided to him in Spanish. Dkt. 46 at 1-2. Rather, the Government's only evidence that Fernandez Sanchez was apprised of a right to appeal is Exhibit D in Fernandez Sanchez's Motion to Dismiss. Dkt. 37. Titled “Order of the Immigration Judge, ” the first paragraph of the document states: “This is a summary of the oral decision entered on [June 30th, 2011]. This memorandum is solely for the convenience of the parties. If the proceedings should be appealed or reopened, the oral decision will become the official opinion in the case.” Dkt. 37-4. Where the document states “Appeal: Waived / Reserved, ” the IJ circled “Waived” and struck through “Reserved.” Id. However, nowhere in the in the hearing did the IJ mention appellate rights. As the document is intended to merely summarize the IJ's oral order, Dkt. 37-4, the audio recording controls. United States v. Vasquez Flores, 362 F.Supp.3d 349, 357 (W.D. Va. Jan. 25, 2019).

         In a recent, similar case in the Western District of Virginia, Judge Dillon concluded that where no mention of appellate rights was made at the removal hearing, but the resulting summary of the hearing stated that the defendant had nevertheless waived any appeal, the hearing controlled, no appeal rights were waived, and the first two elements of § 1326(d) were found satisfied. Vasquez Flores, 362 F.Supp.3d at 357. Finding her decision persuasive, the Court finds that there is no evidence that Fernandez Sanchez was even told of his right to appeal the IJ's decision, let alone evidence that he waived such a right. Mendoza-Lopez, 481 U.S. at 840. Accordingly, the Court concludes that the first two elements of § 1326-exhaustion of administrative remedies and opportunity for judicial review-have been satisfied. El Shami, 434 F.3d at 664; Ortiz, 488 Fed.Appx. at 718; Vasquez, 362 F.Supp.3d at 357.

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