United States v. Itehua, Criminal Action No. 3:17-cr-119
| Decision Date | 26 March 2018 |
| Docket Number | Criminal Action No. 3:17-cr-119 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | UNITED STATES OF AMERICA, v. LEODAN ITEHUA, Defendant. |
This matter comes before the Court on the defendant's motion to dismiss. A grand jury indicted Itehua for illegal reentry in violation of 8 U.S.C. § 1326. Itehua now moves to dismiss the indictment by challenging the validity of his 2011 deportation order, itself an element of the illegal reentry charge. Because the flawed order cannot support a conviction, the Court will grant the motion to dismiss.
On June 1, 2011, the U.S. Immigration and Customs Enforcement ("ICE") took custody of Itehua, a Mexican native and citizen. He appeared before an Immigration Judge ("IJ") on June 7, 2011. At the hearing, the IJ informed Itehua that he might be eligible for cancellation of removal, which would give him residency in the United States if granted. Itehua replied that he did not want to apply for cancellation. The IJ asked Itehua if he had sufficient funds to leave the country voluntarily, and Itehua said he did not. Then, the IJ ordered Itehua removed from the United States to Mexico. When the IJ advised Itehua that he could either appeal the removal decision or accept it as final, Itehua accepted it.
ICE returned Itehua to Mexico, and he later reentered the United States without permission. ICE took custody of him in Virginia, and this prosecution followed. Itehua now argues that his invalid 2011 deportation order keeps the government from prosecuting him for illegal reentry. Specifically, Itehua says that in 2011 the IJ did not advise him of his eligibility for voluntary departure, as 8 C.F.R. § 1240.11(a)(2) requires.1 Itehua claims that he would have asked for voluntary departure if he had known of its availability, and would have gathered the funds to travel back to Mexico.
A deportation order is an element of the illegal reentry offense. United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005). A defendant may collaterally attack an underlying deportation order in a criminal prosecution for illegal reentry, United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987), if he satisfies three requirements. El Shami, 434 F.3d at 663 (citing 8 U.S.C. § 1326(d)). He must show that:
8 U.S.C. § 1326(d).
Reviewing courts often excuse a defendant's failure to exhaust administrative remedies and seek judicial review when a procedural flaw in the immigration proceeding causes that failure. United States v. Moreno-Tapia, 848 F.3d 162, 169 (4th Cir. 2017). For instance, in Mendoza-Lopez, the Court found that the respondents did not knowingly and validly waive their rights to appeal. 481 U.S. at 840. Because the IJ in that case did not adequately explain to therespondents that they might be eligible for suspension of deportation, they did not know of any basis upon which to appeal. Id. at 840, 842. The "fundamental procedural defects of the deportation hearing...rendered direct review...unavailable." Id. at 841.
To demonstrate fundamental unfairness as the third factor of the test requires, a defendant must show that (1) defects in his underlying deportation proceeding violated due process, and (2) he suffered prejudice as a result. El Shami, 434 F.3d at 664. To establish prejudice, the defendant must demonstrate that, but for the errors in his proceeding, there was a "reasonable probability" that he would have avoided deportation. Id. at 665.
Itehua argues that the government relies on a flawed underlying deportation order because the IJ did not properly inform him of his eligibility to seek voluntary departure. The Code of Federal Regulations requires immigration judges to "inform the alien of his or her apparent eligibility to apply for any of the benefits enumerated in this chapter and shall afford the alien an opportunity to make application during the hearing." 8 C.F.R. § 1240.11(a)(2).
Voluntary departure allows aliens to leave the country willingly in lieu of deportation. 8 U.S.C. § 1229c; Dada v. Mukasey, 554 U.S. 1, 8 (2008). It "facilitates the possibility of readmission," by eliminating the lengthy waiting periods attending involuntary removal. Dada, 554 U.S. at 11-12. An alien may apply for voluntary departure before the conclusion of removal proceedings, or the alien may request voluntary departure at the conclusion of removal proceedings. In re Arguelles-Campos, 22 I. & N. Dec. 811, 813 (BIA 1999). Different eligibility requirements apply depending on when the alien makes the voluntary departure request. Id. at 814. To receive voluntary departure at the conclusion of proceedings, an alien must show:
8 U.S.C. § 1229c(b)(l).
If an alien applies before removal proceedings conclude, he must concede removability, waive appeal, have no aggravated felony convictions, and pose no threat to national security. Arguelles-Campos, 22 I. & N. Dec. at 815. To receive pre-conclusion voluntary departure, an alien need not show good moral character or that he has the financial means to depart. Id. at 817. An alien cannot receive either type of voluntary departure if an IJ previously permitted him to depart voluntarily. 8 U.S.C. § 1229c(c). The IJ has discretion regarding these applications, and should consider factors such as the nature and circumstances of the grounds for deportation, additional immigration violations, criminal record, and character. Arguelles-Campos, 22 I. & N. Dec. at 817. Certain circumstances, like long residence and family in the United States, can mitigate adverse factors. Id.
The parties do not focus on the first two factors necessary to attack Itehua's removal order, so the Court will address them only briefly. The 2011 hearing transcript indicates that the IJ asked Itehua if he had sufficient funds to leave the country voluntarily,3 but did not otherwiseaddress voluntary departure. As in Mendoza-Lopez, the IJ did not adequately explain to Itehua that he might qualify for relief—namely, voluntary departure—so he did not understand that he had anything to appeal. Thus, Itehua did not have the opportunity to seek judicial or administrative review.
As for the fundamental fairness factor, the parties dispute both whether the IJ's error violated due process and whether Itehua suffered prejudice as a result. The government argues that an individual does not have a due process right to discretionary relief, including voluntary departure. The government, however, fails to recognize two key distinctions. First, a right to seek relief differs from a right to the relief itself. United States v. Copeland, 376 F.3d 61, 72 (2d Cir. 2004). In Copeland, the Second Circuit determined that an IJ's failure to inform an eligible alien of his right to discretionary relief, when prejudicial, constitutes a fundamental procedural error. 376 F.3d at 72. Similarly, in El Shami, the Fourth Circuit identified a due process problem with the defendant's deportation proceedings in part because he did not have an opportunity to seek relief from an IJ. El Shami, 434 F.3d at 665.
Second, the government fails to distinguish between appealing an IJ's disposition regarding discretionary relief from deportation, and challenging the validity of a prior deportation in a criminal prosecution for illegal reentry. In Smith v. Ashcroft, a case involving the former scenario, the Fourth Circuit found that a habeas corpus petitioner had no due process interest in receiving discretionary relief from an IJ. 295 F.3d 425, 429 (4th Cir. 2002). In contrast, the panel observed that due process requires courts to review underlying deportation proceedings when the government criminally prosecutes a defendant for illegal reentry. Id. at 430-31. This case implicates the latter scenario, as it involves a criminal prosecution dependent upon an underlying immigration hearing. Mendoza-Lopez established that a defendant, likeItehua, can collaterally attack a deportation that constitutes an element of a later crime, regardless of the discretionary nature of relief available at the initial deportation proceeding. United States v. Wilson, 316 F.3d 506, 515 (4th Cir. 2003) (Motz, J., concurring) ().
Thus, the due process issue in this case concerns not whether the Constitution mandates relief from deportation, but whether the IJ committed a fundamentally unfair procedural error by failing to inform Itehua of the possibility of that relief and neglecting to allow him to apply during...
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