United States v. Gomez-Salinas, Civil No. 2:19cr10
| Decision Date | 12 March 2019 |
| Docket Number | Civil No. 2:19cr10 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | UNITED STATES OF AMERICA, v. CARLOS GOMEZ-SALINAS, Defendant. |
This matter is before the Court on a motion filed by Defendant Carlos Gomez-Salinas ("Defendant" or "Gomez-Salinas") to dismiss the indictment against him. ECF No. 12. For the reasons stated below, Defendant's Motion to Dismiss is DENIED.
The underlying facts of this case do not appear to be in dispute. Defendant Gomez-Salinas is a citizen of Mexico. Response, ECF No. 13 at 1. He first illegally entered the United States at some point prior to February 12, 2006. Id. On February 12, 2006, Defendant was arrested by Charlotte-Mecklenburg police for resisting a public officer.1 Id. at 1, Ex. 1 (arrest record). On April 15, 2007, Defendant was again arrested by Charlotte-Mecklenburg police for domestic assault. Id. at 1, Exs. 1, 2 (police report).2
Following these arrests, on April 26, 2007, Defendant was served in person with an Immigration and Naturalization Service ("INS") Notice to Appear ("Notice to Appear"). Motion to Dismiss, ECF No. 12, Ex. B. The Notice to Appear advises Defendant that removal proceedings under section 240 of the Immigration and Nationality Act were initiated against him, that he is ordered to appear at a hearing before an immigration judge, and stated that the date and time of the hearing would be set later. Id.
On July 31, 2007, attorney Jeannette Freeman filed a Notice of Appearance in Defendant's Removal Proceeding, with such Notice providing the Defendant's address in Marietta, Georgia. Response, Ex. 3. On that same date, the immigration court served a Notice of Hearing in Removal Proceeding, indicating the time, date, and place of the hearing, on the Defendant at the same Marietta address provided by his attorney. Id., Ex. 4. The hearing was scheduled for August 28, 2007. Id. On August 28, 2007, a second Notice of Hearing in Removal Proceedings was personally served on the Defendant indicating a new date for the removal hearing on September 27, 2007. Id., Ex. 5. On September 24, 2007, the immigration court served a third Notice of Hearing on Defendant'scounsel rescheduling the hearing for October 23, 2007. Id., Ex. 6.
Thereafter, the removal hearing was again rescheduled for September 2, 2008. Id., Ex. 10.3 Counsel sent a letter to Defendant dated July 21, 2008, which informed the Defendant of the time and place of his upcoming September 2 hearing with the immigration court. Id., Ex. 11. On August 5, 2008, Defendant's attorney in the removal proceedings filed a motion to withdraw representation. Id., Ex. 10. The attorney cited a breakdown of communications with Defendant. Id. The record does not indicate that the motion to withdraw was ever granted.
On August 27, 2008, the immigration court issued a fourth Notice of Hearing setting the hearing for November 18, 2008 at 8:30 a.m. at 180 Spring Street, Southwest, Suite 241, Atlanta, Georgia 30303. Id., Ex. 12. This Notice of Hearing was served on Defendant's counsel.
On November 18, 2008, the hearing was held. Id., Ex. 13. Defendant was not present. Id. Immigration Judge Wayne K. Houser, Jr. ordered that the Defendant be removed to Mexico ("Removal Order"), noting in the Removal Order that "[a]t a prior hearing the respondent admitted the factual allegations in the Notice to Appear and conceded removability." Id. On December 11, 2008, the Defendant was removed at the Hidalgo Point of Entry and an Immigration Agent witnessed his departure from the United States into Mexico. Id., Ex. 14.
Thereafter, the Defendant illegally re-entered the United States. Id., Ex. 15. Pursuant to a Decision to Reinstate the November 2008 Removal Order, the Defendant was removed for a second time to Mexico from the United States on May 10, 2012. Id., Exs. 15, 16. Subsequent to his second removal to Mexico, Defendant again illegally re-entered the United States. On December 24, 2018, the Defendant was arrested in Chesapeake, Virginia, and charged with public intoxication in violation of Va. Code § 18.2-157. Id., Ex. 17.
On January 10, 2019, Defendant was indicted for the instant offense: Reentry of a Previously Deported Alien, in violation of 8 U.S.C. § 1326(a). ECF No. 1. On January 29, 2019, Defendant filed the instant motion to dismiss. ECF No. 12. In the motion, Defendant argues that because the April 2007 INS Notice to Appear failed to include the date and time of Defendant's removalproceeding, the immigration court lacked jurisdiction to order Defendant's removal. Defendant contends that the November 2008 Removal Order is invalid, and the current indictment must be dismissed because Defendant has not re-entered the United States subsequent to the entry of a valid order removing Defendant from the country. On February 12, 2019, the Government filed a response. ECF No. 13. Defendant has not filed a reply and the deadline to do so has passed; the motion is ripe for decision. The Court has reviewed the parties' submissions and concludes that a hearing is not necessary. Local Criminal Rule 47(J).
Defendant seeks a collateral judicial review of his November 2008 Removal Order, arguing that the order was ultra vires because the immigration court lacked jurisdiction as the April 2007 Notice to Appear did not include a date and time for the hearing. An alien charged with illegal re-entry may, in a criminal proceeding under § 1326, wage such a collateral attack that challenges the validity of the underlying removal order only if the alien demonstrates:
8 U.S.C. § 1326(d). Because section 1326(d) is conjunctive, a defendant must satisfy all three provisions before he may wage a collateral attack on the prior removal order. United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005).
Here, Defendant has failed to satisfy any of the three provisions. First, Defendant has failed to exhaust the administrative remedies available to seek relief from his removal order. An alien may appeal a removal order issued by an immigration judge to the Board of Immigration Appeals ("BIA"). 8 C.F.R. § 1003.1. Where an alien, like the Defendant in this case, fails to appeal to the BIA, he fails to meet the exhaustion requirement of § 1326(d). See, e.g., United States v. Mejia, 671 F. App'x 161, 161 (4th Cir. 2016) ().
Second, a defendant must demonstrate that the underlying removal proceedings deprived him of the opportunity for meaningful judicial review. For instance, the opportunity for judicial review is denied where the entirety of the removal proceedings occurred while a defendant was in abstentia, without the "means of obtaining legal counsel, of discovering the remedies available to him, or of filing an appeal or petition for habeas corpus in the twenty-fivedays that passed between the issuance of the order of deportation and Defendant's removal[.]" United States v. Munoz-Giron, 943 F. Supp. 2d 613, 621-22 (E.D. Va. 2013). Here, Defendant was represented by counsel in the removal proceedings; he also does not claim that he could not have known of avenues for judicial review such as 8 U.S.C. § 1252(a)(2)(D), which permits judicial review of final orders of removal on limited grounds by the various Circuit Courts of Appeals.
Courts have excused defendants from demonstrating either of these two requirements—the failure to exhaust administrative remedies or to seek judicial review—and permitted a collateral attack, "where that failure is itself the product of a procedural flaw in the immigration proceeding." United States v. Moreno-Tapia, 848 F.3d 162, 169 (4th Cir. 2017). For instance, the Fourth Circuit affirmed the excusal of a defendant's failure to exhaust administrative remedies or seek judicial review where the defendant signed a waiver of these rights written in English but he "did not read or understand English to an extent sufficient to enable him to comprehend the [forms], or to make a knowing and informed decision on the basis of forms that he could not read." United States v. Lopez-Collazo, 824 F.3d 453, 459 (4th Cir. 2016) (quotations omitted). Here, the Defendant did not unknowingly sign a waiver of his rights to appeal to the BIA or an appellate court; he simply failed to make such an appeal. Defendant alsodoes not argue that he lacked necessary language skills or failed to comprehend his rights.
Nor is this a case where the defendant received a Notice to Appear without a date and time for the hearing, and the defendant never received any further correspondence regarding the hearing. For example, in El Shami, the Fourth Circuit reasoned that defendant could not be expected to meet the exhaustion and judicial review requirements because, without further notifications, that defendant could not have been informed of his rights to appeal to the BIA or judiciary. 434 F.3d at 664. Here, although the initial Notice to Appear did not contain the date and time for the hearing, Defendant does not argue that he did not have actual notice of the hearing. As the hearing was rescheduled, Defendant received four additional notices with the date and time of the hearing. Such amended notices are expressly permitted by statute. 8 U.S.C. § 1229(a)(2)(A) (...
To continue reading
Request your trial