United States v. Infante-Rivera
| Decision Date | 22 July 2016 |
| Docket Number | Case No. 1:16 CR 7 RLW (ACL) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. PEDRO INFANTE-RIVERA, Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b). Pending before the undersigned are Defendant Infante-Rivera's three pretrial motions. (Docs. 21, 22, and 29.)
The Defendant entered the United States in 1996 without inspection. He was convicted in a Missouri Circuit Court of two separate drug felonies in 2004—possession of more than 35 grams of marijuana and possession with intent to distribute more than five grams of marijuana. While serving a sentence of incarceration for those drug convictions, the Defendant's unlawful presence was discovered and expedited removal proceedings were initiated when an Immigration Agent served the Defendant with a "Notice of Intent to Issue a Final Administrative Removal Order." The Defendant waived his right to rebut the charges and his right to seek judicial review. The Defendant was deported when he completed the term of incarceration for the drug offenses. When the Warrant of Removal/Deportation was executed, the Defendant left the country on foot, headed for Mexico. The next day, the Defendant reentered the United States without inspection. Eleven years later, the Defendant's presence in the United States was discovered by an Immigration Agent. The instant Indictment for Reentry of Removed Alien was filed two weeks later.
Each of the Defendant's Motions to Dismiss requests dismissal of the Indictment for a separate and distinct reason. One claim is that the Defendant was not previously convicted of an aggravated felony so there is no way for the Government to prove the offense. Another claim is that the statute of limitations has been violated because the Defendant was "found in" the United States more than five years before he was indicted. A third claim is that the Defendant's deportation in 2004 violated his due process rights as set out in 8 U.S.C. § 1326 based on a claim that he was afforded no administrative or judicial review, because his prior conviction for possessing more than five grams of marijuana was improperly identified as an aggravated felony.
In consideration of the pleadings identified above, the evidence adduced at the hearing, which included testimony from one law enforcement officer, as well as numerous exhibits submitted by both parties, the undersigned recommends that the following findings of fact and conclusions of law be adopted and that the Defendant's Motions to Dismiss be denied.
I. Summary of Law Governing Removal of Criminal Aliens
The Constitution requires that "[n]o person shall be. . .deprived of life, liberty, or property without the due process of law[.]" U.S. Const. amend. V. The Supreme Court has recognized that the Due Process clause of the Fifth Amendment applies to "[e]venone whose presence in this country is unlawful, involuntary, or transitory." Matthews v. Diaz, 426 U.S. 67, 77 (1976).
The recognition that individuals who are not lawfully present in the United States should receive due process is also considered in the Immigration and Naturalization Act's (INA) provisions regarding how criminal aliens should be removed after having been convicted of various types of criminal offenses. Title 8 U.S.C. § 1228, Expedited removal of aliens convicted of committing aggravated felonies, provides in pertinent part:
The Attorney General shall provide for the availability of special removal proceedings at certain Federal, State, and local correctional facilities for aliens convicted of any criminal offense. . .[including aggravated felons]. . . Such proceedings shall be conducted. . .in a manner which eliminates the need for additional detention at any processing center of the [Immigration and Naturalization Service (INS)] and in a manner which assures expeditious removal following the end of the alien's incarceration for the underlying sentence. . .
8 U.S.C. § 1228(a)(1). "An alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States." 8 U.S.C. § 1228(c).
Title 8 U.S.C. § 1101(a)(43) defines "aggravated felony" by listing all the different types of criminal offenses to which the term applies. The subsection that defines the relevant "aggravated felony" for the instant case is § 1101(a)(43)(B)—"illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).
Another relevant INA provision reveals that controlled substance convictions that are not aggravated felonies and committed by aliens may result in deportation.
Any alien who at any time after admission has been convicted of a violation of. . .any law or regulation of a State, the United States, or a foreign country relating to a controlled substance. . ., other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.
8 U.S.C. § 1227(a)(2)(B)(i).
Expedited removal proceedings for an aggravated felony commence once the alien has received personal service of the "Notice of Intent" that sets forth:
the preliminary determinations and inform[s] the alien of [INS'] intent to issue a Form I-851A, Final Administrative Removal Order, without a hearing before an immigration judge. The Notice of Intent shall constitute the charging document. The Notice of Intent shall include allegations of fact and conclusions of law. It shall advise that the alien: has the privilege of being represented at no expense to the government, by counsel of the alien's choosing, as long as counsel is authorized to practice in removal proceedings; may request withholding of removal to a particular country if he or she fears persecution or torture in that country; may inspect the evidence supporting the Notice of Intent; may rebut the charges...
8 C.F.R. § 238.1(b)(2)(i) (emphasis added). See also 8 U.S.C. § 1228(b)(4).2
If an alien disagrees with the contents of the Notice of Intent, the alien has "10 calendar days from service of the Notice of Intent or 13 calendar days if service is by mail to file a response to the Notice of Intent." 8 C.F.R. § 238.1(c)(1). If an alien chooses to rebut the charges against him, "the alien may. . .submit a written response rebutting the allegations supporting the charge. . ." Id.
In the event a Deciding Service officer finds that an "alien's timely rebuttal, raises a genuine issue of material fact regarding the preliminary findings," or "that the alien is not amenable to removal under [the Expedited removal statute]. . .the deciding Service officer shall terminate the expedited proceedings" and take the necessary steps for removal proceedings to be initiated before an immigration judge. 8 C.F.R. § 238.1(d)(2)(ii)(A) and (d)(2)(iii).
The "Expedited proceedings" section of 8 U.S.C. § 1228 notes:
Notwithstanding any other provision of law, the Attorney General shall provide for the initiation and, to the extent possible, the completion of removal proceedings, and any administrative appeals thereof,3in the case of any alien convicted of an aggravated felony before the alien's release from incarceration for the underlying aggravated felony.
8 U.S.C. § 1228(a)(3)(A) (emphasis added).
The aforementioned recitation of relevant provisions within the INA clearly directs Department of Homeland Security (DHS) officers to use expedited procedures to remove aliens who are not lawful permanent residents and have committed an "aggravated felony." 8 U.S.C. § 1228(b)(1)-(2). While the procedures are swift there is allowance for judicial review. The expedited removal statute provides:
(3) The Attorney General may not execute [a final order of removal] until 14 calendar days have passed from the date that such order was issued, unless waived by the alien, in order that the alien has an opportunity to apply for judicial review under section 1252 of this title.
8 U.S.C. § 1228(b)(3) (emphasis added). Section 1252 indicates that review of a Final Order of Removal is possible if:
8 U.S.C. § 1252(d)(1)-(2).
The INA provides that entry of an alien into the United States without inspection (and other methods of improper entry) is a misdemeanor for the first commission of such offense. 8 U.S.C. § 1325. If an alien is found to be present in the United States after a prior deportation (or other similar order), the charge of Reentry of Removed Alien may apply which is a felony. 8 U.S.C. § 1326.
III. Findings of Fact
Defendant Pedro Infante-Rivera was born in Mexico and first entered the United States on or about January 1, 1996 at or near Progresso, Texas. Using the alias, Jose Chaires-Garcia, the Defendant was arrested by the Leachville Police in Arkansas on November 22, 1997, for a Controlled Substance offense involving less than 28...
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