United States v. Lopez, 3:14–cr–00206–MOC–DSC.

• Citation: 84 F.Supp.3d 482
• Decision Date: 03 February 2015
• Docket Number: No. 3:14–cr–00206–MOC–DSC.,3:14–cr–00206–MOC–DSC.
• Court: United States District Courts. 4th Circuit. Western District of North Carolina
• Parties: UNITED STATES of America, v. Eliseo Martinez LOPEZ, Defendant(s).

84 F.Supp.3d 482

UNITED STATES of America

v.Eliseo Martinez LOPEZ, Defendant(s).

No. 3:14–cr–00206–MOC–DSC.

United States District Court, W.D. North Carolina, Charlotte Division.

Signed Feb. 3, 2015.

Kenneth M. Smith, U.S. Attorney's Office, Charlotte, NC, for United States of America.

ORDER

MAX O. COGBURN JR., District Judge.

THIS MATTER is before the court on defendant's Motion to Dismiss Pursuant to 8 U.S.C. § 1326(d). After initial briefs were filed, the court heard oral arguments on January 26, 2015, and allowed post-hearing briefing. Having considered all of the arguments of counsel, the court enters the following findings, conclusion, and Order denying the Motion to Dismiss.

I.

Defendant is charged with unlawful reentry into the United States after removal subsequent to commission of an aggravated felony, all in violation of 8 U.S.C. § 1326(a) and (b)(2). See Indictment (# 1). At the time a permanent resident alien, defendant was removed in 2007 to Mexico as an aggravated felon based on a conviction in the North Carolina General Court of Justice for Discharging a Weapon Into Occupied Property, a violation of § 14–34.1(A) of the North Carolina General Statutes. In moving to dismiss, defendant contends that the removal on which this action is founded was invalid because, in waiving a hearing before an immigration judge (“IJ”) in 2007, he was denied due process, preventing him from contesting the Attorney General's basis for his removal, the state conviction which the United States Immigration and Customs Enforcement (hereinafter “ICE”) determined qualified him as an aggravated felon.

II.

For purposes of considering the Motion to Dismiss, the following facts appear to be undisputed. Prior to removal, defendant was a permanent resident alien, having emigrated from Mexico to the United States with his family as a young child. On November 9, 2005, the defendant was convicted in the North Carolina General Court of Justice, Superior Court Division for Mecklenburg County, of “Discharging a Weapon in Occupied Property,” a violation of Chapter 14–34.1(A) of the North Carolina General Statutes. Defendant was sentenced to 25–39 months of imprisonment. See Govt. Ex. 2 (# 16–2).

After such conviction, United States Immigrations and Customs Enforcement (“ICE”) commenced proceedings to remove defendant as an aggravated felon. After receiving a Notice to Appear for removal proceedings in October 2007, defendant signed a “Statement Made for the Issuance of a Final Removal Order” (hereinafter “waiver”). See Govt. Ex. 4 (# 16–4).¹ In pertinent part, such waiver provided, as follows:

3. I understand that I have the right to hearing before a immigration judge in which hearing I have the right to be represented, the opportunity to examine and object to the evidence presented against me, to present witnesses in my own behalf, to cross-examine witnesses presented by the government, object to evidence presented by the government including my own written statements, to present my own evidence, have all matters on the record recorded verbatim, and that the government be required to prove that I am removable from the United States. I understand that it I had a hearing in front of a judge, he would consider if there was any relief from removal available to me. Additionally, I understand that I have a right to appeal. Knowing all the above, I hereby waive those rights and request that my removal proceedings be conducted solely by way of written record without a hearing.

Id. (error in the original). After receiving such waiver, an immigration judge (hereinafter “IJ”) issued his “Decision and Order” on November 8, 2007, finding that such waiver was knowing, voluntary, and intelligent, and further concluding that the allegations of the charging document were true based on defendant's waiver.² Based on those findings, the IJ directed that defendant be removed from the United States. IJ Order, Govt. Ex. 5 (# 16–5).

Defendant thereafter signed and/or acknowledged receipt of the Warrant of Removal/Deportation, which based his removal on his status as an aggravated felon. Defendant was then advised in the “Warning to Alien Removed or Deported” that he could not re-enter or be found in the United States at any time after deportation because he had been found inadmissible under section 237 of the Immigration and Naturalization Act due to having been convicted of an aggravated felony. Govt. Ex. 6 (# 16–6). He was further advised that before any return he was required to seek permission to reapply for admission by contacting the United States Consulate or United States Department of Homeland Security. Id. Defendant acknowledged receiving such advice by placing his signature on the bottom of the form. Id.

Defendant was then removed from the United States, but, according to the Indictment, returned to the United States without first seeking or receiving permission from the Attorney General. Based on such return, the Grand Jury charged defendant with unlawful re-entry under 8 U.S.C. § 1326(a).

III.

Defendant moves to dismiss the indictment under Rule 12(b), Federal Rules of Criminal Procedure, based on an alleged defect in his removal, which is a collateral attack on the administrative proceedings which occurred before the Attorney General. As such, this court's inquiry is limited by 8 U.S.C. § 1326(d).

A district court may dismiss an indictment under Rule 12 “where there is an infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial.” United States v. Snipes, 611 F.3d 855, 866 (11th Cir.2010) (citation and internal quotation marks omitted). Rule 12(b)(2) provides that “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” Fed.R.Crim.P. 12(b)(2). As the Court of Appeals for the Fourth Circuit has noted, “a district court may consider a pretrial motion to dismiss an indictment where the government does not dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise does not dispute the pertinent facts.” United States v. Weaver, 659 F.3d 353, 355 (4th Cir.2011). As there are no material issues of fact in dispute, the court will consider the Motion to Dismiss based on the arguments of the parties.

To succeed on a Rule 12(b) motion which challenges an Order of removal, defendant has the burden under the Immigration and Nationality Act of showing the following:

(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). Because the requirements of Section 1326(d) are written in the conjunctive, defendant must prove all three subparts in order to be entitled to relief. United States v. El Shami, 434 F.3d 659, 663 (4th Cir.2005).

IV.

The government argues that defendant's Motion to Dismiss fails from the outset because he cannot show that he has exhausted any administrative remedies. 8 U.S.C. § 1326(d)(1). While a defendant's “failure to exhaust administrative remedies will bar collateral attack on the order in a subsequent illegal reentry prosecution under § 1326(d),” United States v. Cerna, 603 F.3d 32, 38 (2d Cir.2010), the Court of Appeals for the Fourth Circuit in an unpublished decision held that “[c]ourts 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.” ” United States v. Ortiz, 488 Fed.Appx. 717, 718 (4th Cir.2012). While Ortiz is not binding on this court because it is unpublished, it is instructive and as such, the court finds it prudent to consider whether exhaustion has been excused through an invalid waiver.

A.

Fundamentally, there is nothing inherently wrong with waivers. Indeed, federal courts routinely allow criminal defendants to waive any number of constitutional rights, including the right to counsel, the right to a jury trial, and the right to appeal. United States v. Marin, 961 F.2d 493, 496 (4th Cir.1992). However, while a person may waive rights guaranteed by the Constitution or provided by statute, the United States Supreme Court has long held that “courts indulge every reasonable presumption against waiver of fundamental constitutional rights' and do not presume acquiescence in the loss of such rights.” Johnson v. Zerbst, 304 U.S. 458, at 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) (quotation marks, footnotes, and citations omitted); see also United States v. Johnson, 659 F.2d 415, 416 (4th Cir.1981). “In order for a waiver to be valid, it must be shown that the defendant intentionally relinquished a known right.” Id. “Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a ‘knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances.’ ” Iowa v. Tovar, 541 U.S. 77, 81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ).

When considering representations made in a waiver, courts interpret the terms of the waiver in accordance with traditional principles of contract law. United States v. Davis, 714 F.3d 809, 814 (4th Cir.2013) ; United States v. Harvey, 791 F.2d 294, 300 (4th Cir.1986). Because immigration waiver provisions are drafted by the government and implicate an immigrant's constitutional rights, courts hold the government to a “greater degree of responsibility” for any ambiguities in the waiver than it would even the drafter of a contract. United States v. Yooho Weon, 722 F.3d 583, 588 (4th Cir.2013).

In reviewing the waiver at issue here, the court has first considered the...