United States v. Jorquera

• Docket Number: 19-CR-479 (AMD)
• Decision Date: 09 November 2021
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ROGELIO PINTO JORQUERA, Defendant.
• Court: U.S. District Court — Eastern District of New York

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UNITED STATES OF AMERICA, Plaintiff, v. ROGELIO PINTO JORQUERA, Defendant.

No. 19-CR-479 (AMD)

United States District Court, E.D. New York

November 9, 2021

MEMORANDUM DECISION AND ORDER

ANN M DONNELLY, UNITED STATES DISTRICT JUDGE

The defendant is charged with illegal reentry after removal, in violation of 8 U.S.C. §§ 1326(a) and (b)(1). Before the Court is the defenda nt's motion to dismiss the indictment. (ECF No. 21.) For the reasons explained below the motion is denied.

BACKGROUND

The defendant is a native and citizen of Chile. (ECF No. 21-2 at 1.) Over the past 20 or so years, the defendant has been in and out of the Unit ed States; he has been removed at least three times. (ECF No. 21-6 at 2, 4; ECF No. 21-5 at 2; ECF No. 22-7.) In March of 2005, the defendant entered the United States at or near San Ysidro, California.^[1] (Id.) On February 10, 2009, Edison Police Department officers arrested the defendant for shoplifting in New Jersey.^[2] (ECF No. 22 at 7; ECF No. 22-2 at 15.) On February 26, 2009, while the defendant was in custody at the Middlesex County Jail on the shoplifting charges, immigration enforcement agent David Chrzanowski served the defendant with a Notice to Appear (the “NTA”). (ECF No. 21-1 at 4.) In the NTA, the Department of Homeland Security (“DHS”) alleged that the defendant was subject to removal pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (the “INA”), which provides in part that an immigrant present in the United States without being admitted or paroled is removable.^[3] (ECF No. 21-2 at 1.) The NTA ordered the defendant to appear in front of an immigration judge in Newark, New Jersey but did not provide the date or time of the hearing. (Id.) Instead, the NTA directed the defendant to appear “on a date to be set at a time to be set to show why you should not be removed from the United States based on the charge(s) set forth above.” (Id.)

On that same day, Agent Chrzanowski served the defendant with a proposed Stipulated Request for Removal Order and Waiver of Hearing (the “Stipulated Removal Request”), which was written in English and Spanish. (ECF No. 21-1 at 5; ECF No. 21-3.) The defendant signed the Stipulated Removal Request, and initialed next to each paragraph, including the following:

I have received a copy of the Notice to Appear (“NTA”) dated February 19, 2009, which contains my full, true, and correct name. The allegations and charges on the NTA have been read to me in a language that I understand.

I have been advised of my right to be represented by an attorney of my choice, at my own expense, during these proceedings. I have also received a List of Free Legal Services Providers.

I waive my right to be represented by an attorney. I will represent myself in these proceedings.

I have been advised that by signing this request, I will be giving up the following legal rights that I would have in a hearing before an immigration judge: a) the right to question witnesses, b) the right to offer and to object to evidence, and c) the right to require the government to prove my removability.

I waive these rights. I do not want to have a hearing before an immigration judge, and I request that the immigration judge issue an order based solely on the written record.

I admit that all of the factual allegations contained in the NTA are true and correct. I also agree that I am removable as charged on the NTA.

I do not wish to apply for asylum, withholding of removal, or protection under the Convention Against Torture.

I do not want to apply for any relief from removal for which I may be eligible . . . . This may include voluntary departure, adjustment of status, change of status, cancellation of removal, registry, and naturalization.

I understand that, depending upon the facts and circumstances of my case, I cannot return to the United States for a minimum of ten years, and possibly forever, without special permission from the Attorney General of the United States. I also understand that returning without proper permission could result in being removed again and/or being prosecuted for illegal reentry which may result in punishment of up to twenty years in prison.

This written statement has been read to me in a language that I understand. I also had an opportunity to read this written statement. I fully understand its consequences. I submit this request for a removal order voluntarily, knowingly, and intelligently. I realize that by signing this document, I will be removed from the United States.

(ECF No. 21-3 at 2-4.) Agent Chrzanowski certified that he read the Stipulated Removal Request to the defendant in Spanish. (Id. at 5.)

On March 4, 2009, on the basis of the signed Stipulated Removal Request, Immigration Judge Mirlande Tadal (the “IJ”) entered an order for the defendant's removal (the “Stipulated Removal Order”). (ECF No. 21-4.) The order reads in pertinent part:

The respondent has submitted a written statement wherein he/she waives a personal hearing before the Immigration Judge, admits the truthfulness of the allegations contained in the Notice to Appear (NTA) and concedes removability as charged in the NTA. The respondent has made no application for relief from removal proceedings which would allow him/her to remain in the United States, but instead requests issuance of an order by this Court for his/her removal to the country of Chile. The Department of Homeland Security (DHS) concurs with the request.

The respondent['s] signed request constitutes a conclusive determination of the alien's removability from the United States. Based upon the respondent's admissions and concessions, removability has been established. Appeal has been waived by both parties.

(Id. at 1.) The IJ did not make an explicit finding that the defendant's waiver was knowing and voluntary. (Id.) The defendant did not appeal from or otherwise challenge the removal order, and was removed to Chile on October 13, 2009. (ECF No. 21-6 at 2.)

Just five days later, on October 18, 2009, the defendant reentered the United States in or near Hidalgo, Texas. (ECF No. 21-6 at 3.) United States Border Patrol agents encountered the defendant in or near Falfurrias, Texas and served him with a Notice of Intent / Decision to Reinstate Prior Order. (ECF No. 21-5 at 3; ECF No. 21-8 at 3.) The defendant was removed on January 21, 2010. (ECF No. 21-6 at 4.) The defendant reentered the United States, and on August 1, 2018, immigration authorities in New York arrested him, reinstated the Stipulated Removal Order and removed him on August 30, 2018. (ECF No. 21-5 at 1-2.)

Nevertheless, the defendant reentered the United States yet again. Law enforcement officers arrested him on October 10, 2019. On October 17, 2019, a grand jury in the Eastern District of New York charged the defendant in a one-count indictment with illegal reentry after removal, in violation of 8 U.S.C. §§ 1326(a) and (b)(1). (ECF No. 7.) Specifically, the indictment charged that the defendant, “an alien who had previously been removed from the United States after a conviction for the commission of a felony, was found in the United States, without the Attorney General of the United States and the Secretary of the United States Department of Homeland Security having expressly consented to such alien's applying for admission.” (Id. at 1-2.) On March 23, 2020, the defendant filed a motion to dismiss the indictment. (ECF No. 21.) The government opposed. (ECF No. 22.) I heard oral argument on July 12, 2021. In post-argument briefing, the defendant argued for the first time that he did not knowingly waive his rights pursuant to the Stipulated Removal Request. (ECF No. 35 at 14; see also ECF No. 21-1 at 15-17.) In that regard, he submitted an affidavit in which he claims that Agent Chrzanowski did not read the Stipulated Removal Request to him.^[4] (ECF No. 35-2 ¶ 14.)

LEGAL STANDARD

“Pursuant to Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure, a defendant may move to dismiss an indictment for various defects, including ‘a failure to state an offense.'” United States v. Marsalis, 314 F.Supp.3d 462, 465 (E.D.N.Y. 2018) (quoting Fed. R. Crim. P 12(b)(3)(B)). “Pursuant to Federal Rule of Criminal Procedure 7(c)(1), an indictment ‘must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.'” United States v. Stringer, 730 F.3d 120, 123-24 (2d Cir. 2013). “In evaluating a motion to dismiss, the Court accepts as true all of the allegations of the indictment.” United States v. Murgio, 209 F.Supp.3d 698, 706 (S.D.N.Y. 2016) (alteration omitted) (internal quotation marks and citation omitted). “An indictment is sufficient if it ‘first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'” Stringer, 730 F.3d at 124 (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). “An indictment that does not set out all of the essential elements of the offense charged is defective.” United States v. Gonzalez, 686 F.3d 122, 127 (2d Cir. 2012).

“Under § 1326 of the INA, it is a crime for a deported or removed alien to enter, attempt to enter, or be found in the United States.” United States v. Scott, 394 F.3d 111, 116 (2d Cir. 2005). A defendant “can defend against such a charge by challenging the validity of the deportation order upon which the charge is predicated.” United States v. Copeland, 376 F.3d 61, 66 (2d Cir. 2004). In United States v. Mendoza-Lopez, the Supreme Court held that “where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a...