Summary
In Sanchez-Lopez the defendant alleged that the failure to provide Form I-860 in Spanish and to obtain his signature prejudiced him by depriving him of an opportunity to withdraw his application.
Summary of this case from United States v. Vargas-LopezOpinion
CRIMINAL ACTION NO. 2:19cr64
11-01-2019
UNITED STATES of America, v. Skeylin SANCHEZ-LOPEZ, Defendant.
John F. Butler, United States Attorney's Office, 101 W. Main Street, Suite 8000, Norfolk, VA 23510, for United States. Rodolfo Cejas, II, Megan Margaret Durkee, Office of the Federal Public Defender, 150 Boush Street, Suite 403, Norfolk, VA 23510, for Defendant.
John F. Butler, United States Attorney's Office, 101 W. Main Street, Suite 8000, Norfolk, VA 23510, for United States.
Rodolfo Cejas, II, Megan Margaret Durkee, Office of the Federal Public Defender, 150 Boush Street, Suite 403, Norfolk, VA 23510, for Defendant.
MEMORANDUM ORDER
REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE This matter is before the court on the Defendant's Motion to Dismiss Indictment ("Motion"). ECF No. 16. The Defendant was ordered removed from the United States on December 6, 2014, following an expedited removal proceeding, under 18 U.S.C. § 1225(b) and 8 C.F.R. § 235.3(b), after he was found within 100 miles of the Mexican border without a valid entry document. Motion at 1. On or about March 11, 2019, the Defendant was discovered in the Eastern District of Virginia. Id. On April 17, 2019, the Defendant was indicted on one count of Reentry by an Excluded, Deported, and Removed Alien, in violation of 8 U.S.C. § 1326(a). ECF No. 1. The Defendant filed the instant Motion on October 2, 2019. On October 4, 2019, the United States filed a Response, ECF No. 17, and on October 18, 2019, the Defendant filed a Reply, ECF No. 22. No hearing was requested by the parties, and the court finds none necessary for disposition of the Motion.
I.
The Defendant argues that his 2014 removal order was invalid, and therefore that it cannot be used to sustain a charge under § 1326(a). Motion at 8. The fact of a Defendant's prior removal or deportation is an element of a § 1326 offense. United States v. Moreno-Tapia, 848 F.3d 162, 165 (4th Cir. 2017). Where the removal proceeding did not provide the defendant with due process, the Defendant may collaterally attack the removal order in a subsequent criminal prosecution for a violation of § 1326 via a motion to dismiss the indictment. United States v. Mendoza-Lopez, 481 U.S. 828, 838–39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). In order to succeed in such a collateral attack, a defendant must show that he exhausted the available administrative remedies, that the removal proceedings deprived him of the opportunity for judicial review, and that "the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d) ; see United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005) ; United States v. Wilson, 316 F.3d 506, 509 (4th Cir. 2003). In the Fourth Circuit, establishing "fundamental unfairness" requires a showing that the defendant's due process rights were violated by defects in the removal proceeding, and that he suffered prejudice as a result of those errors. Moreno-Tapia, 848 F.3d at 170.
There are no administrative remedies or the potential for judicial review for an expedited removal proceeding conducted in accordance with 8 U.S.C. § 1225(b). Therefore, the court's inquiry here concerns only whether the Defendant's removal proceeding was fundamentally unfair, defined as producing violations of the Defendant's due process rights that resulted in prejudice to the Defendant. The Defendant claims that his due process rights were violated in three ways. First, the Defendant points out that the immigration officer failed to have the Defendant sign the back of the Form I-860, the document notifying an alien of the charges against him, as required by 8 C.F.R. § 235.3(b)(2)(i). Motion at 4-6. The Defendant argues that, without a signature, there is no evidence that he was served with the form. Id. at 6. Second, the Defendant argues that he was denied a meaningful opportunity to participate in the expedited removal proceeding because his Form I-860 was in English, depriving him of notice of the charges against him. Id. Third, the Defendant argues that he was denied a meaningful opportunity to participate in the removal proceeding because he was not informed of the potential for relief from removal. Id. at 6–7. Specifically, the Defendant claims he "was eligible for statutory relief from removal in the form of ‘withdrawal of application for admission.’ " Reply at 7 (citing 8 U.S.C. § 1225(a)(4) ). The Defendant then argues that he suffered prejudice because he had a plausible claim for relief that was not considered by the immigration officer. Reply at 8.
The Defendant appears to have added a new alleged defect in his Reply, namely that he was not given an opportunity to review the consular notification form and that it did not provide notice of his inadmissibility. Reply at 5. However, this allegation is not supported by the record, which shows that not only was the consular notification in Spanish, but also that the Defendant signed it, as well as signing each page of his recorded sworn statement. ECF No. 17, Exs. 3, 4, 6. No contrary record evidence suggests lack of review of the documents by the Defendant or lack of notice of inadmissibility, which would be the Defendant's burden to show. See United States v. Diaz-Martinez, 380 F. Supp. 3d 486, 496 (E.D. Va. 2019) (Payne, J.) ("[T]he burden of proof to establish that the elements of Section 1326(d) have been satisfied rests with the defendant.").
In response to these arguments, the Government asserts that there was no fundamental unfairness because the Defendant's failure to sign the Form I-860 did not amount to a due process violation; that, even if the Form I-860 was in English, the Defendant still was apprised of the substance of its contents in Spanish at other points in the proceeding; and that there is no due process right to be notified of the possibility for relief from removal, because such relief is entirely discretionary. Response at 6–9. The Government further asserts that the Defendant did not suffer prejudice because the only relief available was entirely discretionary, and the Defendant cannot show he would not have been removed but for the alleged errors in his removal proceeding. Id. at 9-11.
The Government also points to 8 U.S.C. § 1225(b)(1)(D), which prohibits collateral attacks on the validity of a removal order in a prosecution under 8 U.S.C. § 1326. Response at 5. The court notes that this provision is in tension with United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). For this reason, at least two judges in this district have found § 1225(b)(1)(D) to be unconstitutional. See United States v. Terrazas Siles, 397 F. Supp. 3d 812 (E.D. Va. 2019) (Brinkema, J.); United States v. Villarreal Silva, 313 F. Supp. 3d 660 (E.D. Va. 2018) (Lauck, J.). For the reasons stated below, it is not necessary for this court to address the Government's argument on this point, and therefore not necessary to consider the constitutionality of § 1225(b)(1)(D), because the Defendant's claim is denied on other grounds.
II.
The Defendant's first two alleged defects, the failure to sign the back of the Form I-860 and the fact that the Form I-860 was in English, not Spanish, fail based on the record before this court, which shows that the Defendant was apprised of the substance of Form I-860. The immigration officer, who conversed in Spanish with the Defendant during the proceeding, signed the certificate of service at the bottom of the form. Form I-860, ECF No. 16, Ex. 1. And even if Form I-860 did not actually apprise the Defendant of the charges against him, the rest of the proceedings did. Form 1-867A records the conversation that the immigration officer had, in Spanish, with the Defendant. Form I-867A, ECF No. 17, Ex. 3. This record shows that the Defendant was informed that he did "not appear to be admissible or to have the required legal papers authorizing [his] admission into the United States," that he may be "denied admission [into the United States] ... immediately removed from this country, and ... barred from reentry for a period of 5 years or longer," and that the hearing would be his only opportunity to present information before the immigration officer made a decision. Id. The record further shows that the Defendant acknowledged he was a citizen of Honduras and not of the United States. Id. This conversation thus covered the entire substance of what was on Form I-860, and made clear to the Defendant that it was his opportunity to participate in the proceedings against him.
Even assuming that the above two errors constituted due process violations, these errors were not causally linked to the prejudice the Defendant claims. Nothing in Form I-860 refers to the possibility of discretionary relief from removal, or an alien's ability to request it. Therefore, the alleged prejudice did not occur "as a result of the defects." See El Shami, 434 F.3d at 664 ; Wilson, 316 F.3d at 510.
III.
The Defendant's third alleged defect, that he was not informed of potential relief from removal, has been addressed by a majority of the circuits, which have ruled that there is no due process right for an alien to be informed of the possibility of discretionary relief from removal. See United States v. Estrada, 876 F.3d 885, 888 (6th Cir. 2017) (holding that an alien "has no constitutional right to be informed of eligibility for, or to be considered for, discretionary relief," and listing cases from "the majority of our sister circuits" finding the same). The Fourth Circuit has not ruled on the issue.
These sister circuits include: United States v. Santiago-Ochoa, 447 F.3d 1015, 1020 (7th Cir. 2006) ; Bonhometre v. Gonzales, 414 F.3d 442, 448 n.9 (3d Cir. 2005) ; United States v. Aguirre-Tello, 353 F.3d 1199, 1205 (10th Cir. 2004) (en banc); United States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002) ; Oguejiofor v. Att'y Gen. of the United States, 277 F.3d 1305, 1309 (11th Cir. 2002) ; Escudero–Corona v. INS, 244 F.3d 608, 615 (8th Cir. 2001).
Representing a minority view, the Second and Ninth Circuits have held that a failure to notify an alien of his eligibility for relief from removal can be "fundamentally unfair" under 8 U.S.C. § 1326(d)(3). See United States v. Lopez–Velasquez, 629 F.3d 894, 897 (9th Cir. 2010) (en banc); United States v. Copeland, 376 F.3d 61, 71 (2d Cir. 2004). These cases can be distinguished from the Defendant's, because they involved a form of relief, under section 212(c) of the Immigration and Nationality Act, that the immigration officer was required to inform the alien of. LopezVelasquez, 629 F.3d at 897 ; Copeland, 376 F.3d at 72. That form of relief is not available to the Defendant, and the regulation he points to as governing his proceeding, 8 C.F.R. § 235.3, does not mention an analogous duty of the immigration officer to inform the alien of potential relief.
The Government cites Smith v. Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002), for the proposition that discretionary decisions in deportation cases do not create due process rights, and seeks to extend that principle to say that there is therefore no due process right to notice of the possibility for discretionary relief. The Smith court itself noted, however, that its analysis does not apply when a court is reviewing a removal order in the context of a criminal proceeding. Id.
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In this case, the Defendant was informed of the seriousness of the proceedings against him, including the fact that he may be barred from returning to the United States for a period of several years. See Form I-867A. Further, the Defendant has not pointed to any regulation, statute, or case of this circuit or its district courts that requires the immigration officer to advise an alien of the possibility of discretionary relief, a fact that distinguishes his case from any cases where the court found that there was a due process right to notification of discretionary relief from removal because the immigration officer was required to provide such notification. See United States v. Itehua, No. 3:17-cr-119, 2018 WL 1470250, at *3 (E.D. Va. Mar. 26, 2018) (Gibney, J.) (finding that the due process prong of 8 U.S.C. § 1326(d)(3) was satisfied where the applicable regulation required the immigration judge to inform the defendant of possible relief from removal, but the immigration judge failed to do so); supra note 3, ¶ 2 (citing and distinguishing cases from the Ninth and Second Circuits). Moreover, the Defendant has not shown prejudice resulting from the lack of notice. The Defendant does not point to any evidence in the record suggesting he would have sought the discretionary relief and voluntarily departed from the United States. Cf. United States v. Diaz-Martinez, 380 F. Supp. 3d 486, 506 (E.D. Va. 2019) (Payne, J.) ("In a Section 1326 prosecution, it is the alien's burden to demonstrate that he satisfies all three requirements of Section 1326(d). The Court cannot rely on the argument of counsel rather than evidence in the record.").
Finally, the parties point to the INS Inspector's Field Manual, which discusses six nonexclusive factors for immigration officials to consider in deciding whether to grant a withdrawal of application for admission. Those factors include, "the seriousness of the immigration violation," "previous findings of inadmissibility against the alien," "intent on the part of the alien to violate the law," "ability to easily overcome the ground of inadmissibility," "age or poor health of the alien," and "other humanitarian or public interest considerations." U.S. CUSTOMS AND BORDER PROTECTION, INSPECTOR'S FIELD MANUAL § 17.2(a) (2007). Granting that the first two factors may weigh in the Defendant's favor, the last four weigh against him. He admitted to an intent to enter and work in the United States, despite knowing it was illegal. See Form I-867A at 2. He acknowledged not having, and the record does not show, any pending petitions for admission into the United States. See id. He was not elderly or in any apparent poor health. See id. (stating a date of birth of June 18, 1996). And he acknowledged that he did not face a threat of persecution in Honduras. See id.; Form I-867B, ECF No. 17, Ex. 4.
IV.
In summary, the Defendant's first two alleged defects in his 2014 removal proceeding, i.e. the failure to sign the back of the Form I-860 and the fact that the Form I-860 was in English, did not deprive the Defendant of due process or cause the prejudice the Defendant claims. The Defendant's third alleged defect, the immigration officer's failure to inform him of the potential for discretionary relief in the form of a grant of his withdrawal of his application, fails because the Defendant did not establish that such process was due or that he was prejudiced by any lack of process in this regard.
Therefore, the court DENIES the Defendant's Motion, ECF No. 16. The court DIRECTS the Clerk to send a copy of this Memorandum Order to the Defendant's counsel and to the Assistant United States Attorney at Norfolk.