United States District Court, W.D. Virginia, Charlottesville Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
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).
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,
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. 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”).
30, 2011, Fernandez Sanchez was taken from custody to his
hearing before an immigration judge. 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.
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.
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.
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).
attacks of deportation orders are authorized where, as here,
those orders are necessary to establish an element of the
charged illegal reentry offense. 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
§ 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.
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.
Fernandez Sanchez's § 1326(d) Collateral
Sanchez identifies a multitude of shortcomings in his
four-minute 2011 removal proceeding,  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.
Exhaustion and Judicial Review
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).
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).” El Shami, 434 F.3d at 664 (citing
Mendoza-Lopez, 481 U.S. at 840).
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).
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.