United States v. Benitez-Dominguez

• Citation: 440 F.Supp.3d 202
• Decision Date: 24 February 2020
• Docket Number: 19-CR-99 (NGG)
• Parties: UNITED STATES of America v. Cesar BENITEZ-DOMINGUEZ, Defendant.
• Court: U.S. District Court — Eastern District of New York

440 F.Supp.3d 202

UNITED STATES of America

v.Cesar BENITEZ-DOMINGUEZ, Defendant.

19-CR-99 (NGG)

United States District Court, E.D. New York.

Signed February 24, 2020

Miriam Glaser Dauermann, DOJ-Criminal, Brooklyn, NY, for Plaintiff.

Mia Eisner-Grynberg, Federal Defenders of New York, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, United States District Judge.

Defendant Cesar Benitez-Dominguez has been charged with one count of illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(1). (See Indictment (Dkt. 11).) Section 1326(a) makes it a crime for a person who "has been denied admission, excluded, deported, or removed" from the United States to reenter the country. The indictment asserts that Mr. Benitez-Dominguez had "previously been deported and removed from the United States" (Indictment at 1), a claim predicated on an Order of Removal issued by an immigration court in 2008 (Order of Removal (Dkt. 29-8)).

Pending before the court is Mr. Benitez-Dominguez's motion to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12. Mr. Benitez-Dominguez argues that the Government cannot establish the elements of a § 1326(a) violation because the immigration court that ordered his removal in 2008 lacked the requisite jurisdiction to do so. Because the court agrees that the immigration court was without jurisdiction to order Mr. Benitez-Dominguez's removal, the motion is GRANTED.

I. BACKGROUND

A. Facts

Mr. Benitez-Dominguez was born in Mexico City, Mexico in 1972 and entered the United States without inspection in or around 1989. (Decl. of S. Isaac Wheeler in Supp. of Mot. ("Wheeler Decl.") (Dkt. 29-2) ¶ 4.) He was convicted in New York of driving under the influence and bail jumping in or around 2006; he served eight months in jail and was then transferred directly into the custody of the U.S. Immigrations and Customs Enforcement ("ICE"). (Id. ¶¶ 4-5; Audio Recording of Aug. 6, 2008 Removal Hearing ("Hearing Audio") (Wheeler Decl. at Ex. A).) On July 7, 2008, Mr. Benitez-Dominguez was served with a Notice to Appear ("NTA"), charging him with removability under 8 U.S.C. 1182(a)(6)(A)(i) on the basis that he entered the United States without inspection. (Id. ¶ 6; NTA (Dkt. 29-4).) The NTA did not include either the address of the immigration court where it would be filed or the date and time of Mr. Benitez-Dominguez's initial hearing. (NTA at 1.)

Mr. Benitez-Dominguez was processed in Manhattan on July 9, 2008, but was transferred to a facility in York, PA on July 10, 2008. (Wheeler Decl. ¶ 8.) At some point thereafter, he was transferred again to a facility in Livingston, TX. (Not. of Change of Address for Immigration Court ("Not. of Change of Address") (Dkt. 29-6).) On July 23, 2008, Mr. Benitez-Dominguez was served with a Notice of Change of Address for Immigration Court, which provided an address in Houston where his hearing would be held. (Not. of Change of Address.) According to defense counsel, the official court file for the removal proceedings does not include any notice of hearing issued to Mr. Benitez-Dominguez that indicated the time and date of his hearing. (Wheeler Decl. ¶ 12.)

On August 6, 2008, Mr. Benitez-Dominguez appeared before Immigration Judge ("IJ") Jimmie Lee Benton at the Houston, TX Immigration Court. (Id. ¶ 11.) After a hearing that lasted less than three minutes (see Hearing Audio), Judge Benton ordered Mr. Benitez-Dominguez removed (Id. ; see also Order of Removal). Mr. Benitez-Dominguez was removed on August 12, 2008. (Warrant of Removal/Deportation (Dkt. 30 at ECF p. 21).)

At some point thereafter, Mr. Benitez-Dominguez returned to the United States. Magistrate Judge Viktor V. Pohorelsky issued an arrest warrant under seal on October 10, 2010. (Warrant (Dkt. 2).) According to the Government, Mr. Benitez-Dominguez was arrested by the New York Police Department around August 27, 2018 on charges that have since been dismissed. (Government Mem. in Opp. ("Gov't Opp.") (Dkt. 30) at 6.) He was transferred to federal custody on January 30, 2019. (Id. )

B. Procedural History

On February 26, 2019, a one-count indictment was filed against Mr. Benitez-Dominguez, charging him with illegal reentry in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(1). (See Indictment.) Mr. Benitez-Dominguez was released on his own recognizance on $75,000 bond. (See Jan. 30, 2019 Order (Dkt. 8).) He entered a not guilty plea on March 6, 2019. (Mar. 6, 2019 Min. Entry (Dkt. 13).)

On October 15, 2019, Mr. Benitez-Dominguez moved to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12, arguing that the Government is unable to prove, as required by § 1326(a), that he had been removed. (Mot. to Dismiss ("Mot.") (Dkt. 29)); Mem. in Supp. of Mot. ("Mem.") (Dkt. 29-1). The Government opposed Benitez-Dominguez's motion on November 4, 2019 (Gov't Opp.), and Mr. Benitez-Dominguez replied on November 14, 2019 (Def. Reply ("Reply") (Dkt. 31)).

II. LEGAL STANDARD

"A charge in an indictment is insufficient and must be dismissed when it does not describe conduct that is a violation of the criminal statute charged." United States v. Litvak , No. 3:13-CR-19 (JCH), 2013 WL 5740891, at *2 (D. Conn. Oct. 21, 2013) (citing Russell v. United States, 369 U.S. 749, 764–65, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) ). " Rule 12 authorizes defendants to challenge the lawfulness of a prosecution on purely legal, as opposed to factual, grounds." United States v. Ahmed , 94 F. Supp. 3d 394, 404 (E.D.N.Y. 2015). "A defendant charged with illegal reentry in violation of 8 U.S.C. § 1326 has a right to challenge the removal order upon which the charge is predicated." United States v. Pszeniczny , 384 F. Supp. 3d 353, 355 (E.D.N.Y. 2019) (citing United States v. Mendoza-Lopez , 481 U.S. 828, 837-38, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) ).

III. DISCUSSION

The court first must decide whether Mr. Benitez-Dominguez satisfies the 8 U.S.C. 1326(d) criteria, which limit collateral review of removal orders. If these criteria are met, the court may then consider whether the 2008 Order of Removal is void due to lack of jurisdiction.

A. Collateral Attack on Prior Removal under 8 U.S.C. § 1326(d)

Collateral attacks on prior removal orders are limited by 8 U.S.C. § 1326(d). The statute provides:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order 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).

As a threshold matter, Mr. Benitez-Dominguez argues he does not have to satisfy the § 1326(d) criteria because—due to the immigration court's alleged lack of jurisdiction—his challenge goes to the legal existence of the deportation order rather than its validity. (Mem. at 5.) Mr. Benitez-Dominguez insists that "because of the defective NTA, here there simply is no removal order to collaterally attack: it is a nullity, ‘not voidable, but simply void.’ " (Mem. at 16 (quoting Weyant v. Okst , 101 F.3d 845, 854 (2d Cir. 1996) ) (emphasis in original); see also Reply at 9 (citing United Student Aid Funds, Inc. v. Espinosa , 559 U.S. 260, 270, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010) ; Ex parte Watkins , 28 U.S. 193, 197, 3 Pet. 193, 7 L.Ed. 650 (1830) ).) However, these cases do not support the idea that a void order is a legal nullity such that it ceases to exist absent appeal or collateral attack; in fact, they support the opposite.¹

At least two other courts in this district have considered this question. The defendant in United States v. Maldonado , No. 18-CR-308 (CBA) (E.D.N.Y. Feb. 11, 2019) "fashion[ed] his argument about the Immigration Judge's jurisdiction as outside the scope of § 1326(d) review." Id. slip op. at 29-30. Judge Amon rejected this argument. She found that § 1326(d) "is the exclusive channel through which a defendant can challenge an underlying removal order" and noted that the statute "could not be clearer" in setting forth the criteria under which a collateral attack is permissible. Id. at 30. See also Pszeniczny , 384 F. Supp. 3d at 361-62 (adopting Maldonado 's analysis).

This court agrees. In order to challenge the jurisdiction of the immigration court, Mr. Benitez-Dominguez must satisfy the § 1326(d) factors.² Each factor is discussed in turn.

1. Exhaustion of Administrative Remedies

The parties agree that Mr. Benitez-Dominguez did not seek administrative review of the removal order. (See Mem. at 16-17; Gov't Opp. at 8.) However, the Second Circuit has held that the "failure to exhaust administrative remedies bars collateral review of a deportation proceeding under Section 1326(d)(1) only where an alien's waiver of administrative review was knowing and intelligent." United States v. Calderon , 391 F.3d 370, 374-75 (2d Cir. 2004) (citation omitted) (alteration adopted). "Given ... that many aliens are uncounseled, our removal system relies on IJs to explain the law accurately to pro se aliens. Otherwise, such aliens would have no way of knowing what information was relevant to their cases and would be practically foreclosed from making a case against removal." United States v. Copeland , 376 F.3d 61, 71 (2d Cir. 2004).

"The finding of knowing and intelligent waiver is inevitably a fact-specific inquiry." Ali v. Mukasey , 525 F.3d 171, 174 (2d Cir. 2008). The Second Circuit has found a knowing and intelligent waiver of the right to appeal when "the record of the interaction between the IJ and the alien fairly supports the conclusion that the alien or his counsel understood the nature of the waiver." Id. In United States v. Johnson , 391 F.3d 67 (2d Cir. 2004), the court found a knowing and intelligent waiver where the ...