United States v. Khan, 1:17-cr-148 (LMB)
| Decision Date | 20 October 2017 |
| Docket Number | No. 1:17-cr-148 (LMB),1:17-cr-148 (LMB) |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | UNITED STATES OF AMERICA, v. AYAZ KHAN, Defendant. |
After oral argument on defendant's Motion to Dismiss the Indictment [Dkt. No. 28], the motion was denied. This Memorandum Opinion explains in more detail the reasons for that decision.
Defendant Ayaz Khan ("Khan" or "defendant") is charged with one count of illegal reentry after deportation or removal, in violation of 8 U.S.C. § 1326(a). Khan was initially removed from the United States in 2011. This removal sprung from his 2010 guilty pleas in the Prince William County Juvenile and Domestic Relations District Court to two separate charges of assault and battery and assault and battery on a family member. Def. Mem. [Dkt. No. 28] 1-2.1 In one incident, he slapped his wife and threw a tea kettle at her and, in the other, he grabbed her neck and attempted to choke her. Gov't Opp. 2. Based on these convictions, the Department of Homeland Security initiated removal proceedings against Khan, on the ground that he was removable under a variety of provisions of the Immigration and Nationality Act. Def. Mem. 2.Represented by counsel, Khan filed a response admitting the two convictions but challenging each charge of removability. Gov't Opp. 3. In August 2010, an immigration judge ("IJ") heard argument over two days from Khan's counsel and the government. See id. At the second hearing, the IJ orally sustained one of the charges of removability, finding by clear and convincing evidence that Khan's convictions constituted crimes involving moral turpitude. See id.; Def. Mem. 2.
To reach this finding, the IJ employed the three-step modified categorical analysis prescribed by the Attorney General in In re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008), vacated, In re Silva-Trevino, 26 I. & N. Dec. 550 (A.G. 2015). Under this analysis, the IJ was first required to determine whether the statute of conviction could realistically reach conduct that did not involve moral turpitude. See id. at 698. If the statute could reach such conduct, then the IJ was required to examine the record of conviction to determine whether it established that the defendant's conduct involved moral turpitude. Id. at 698-99. If the record of conviction was indeterminate, then the IJ was required to examine additional evidence if "necessary and appropriate" to determine whether the conviction was based on morally turpitudinous conduct. Id. at 699-700.
In Khan's case, both parties agreed that the statutes of conviction could be applied to conduct that did not involve moral turpitude. See Def. Mem. Ex. B, at 2. Therefore, the IJ turned to the second Silva-Trevino step, examining the record of conviction. See id. The only potentially relevant document was the criminal complaint, which established the factual circumstances underlying both convictions; however, the parties disputed whether the complaint actually constituted part of the record of conviction. Id. at 2-3. Rather than resolve that dispute, the IJ moved to the third Silva-Trevino step, allowing him to consider the complaint evenassuming it was outside the record of conviction. Id. at 3. Under the third step, the IJ found that the complaint established by clear and convincing evidence that Khan's two convictions involved moral turpitude. Id. at 3 ().
At that hearing, the IJ and Khan's counsel had the following exchange:
Gov't Opp. 3, Ex. B.
After the IJ determined Khan was removable, the proceedings continued to address Khan's request for cancellation of removal. In November 2010, the IJ entered a written decision explaining his previous oral ruling concerning Khan's removability and also holding that Khan had shown that he was eligible for cancellation of removal, Def. Mem. 2, Ex. B; however, in July 2011, the IJ denied Khan's application for cancellation of removal and ordered him removed. Id. at 2, Ex. C. Khan did not seek administrative or judicial review of any of these decisions and, on September 20, 2011, he was deported to Pakistan. Gov't Opp. 4-5; Def. Mem. Ex. D.
In August 2015, Khan, represented by counsel, filed a motion to reopen his removal proceedings, in which he argued that his proceedings should be reopened because of a change in the law, citing to Prudencio v. Holder, 669 F.3d 472, 484 (4th Cir. 2012). See Gov't Opp. 5, Exs. E, F, G. In Prudencio, which was decided after Khan was deported, the Fourth Circuit rejectedthe third Silva-Trevino step and directed courts to limit their modified categorical review to only the record of conviction. According to the Fourth Circuit, because the underlying statutory language that Silva-Trevino purported to interpret "unambiguously directs that an adjudicator consider only the conviction itself, and not any underlying conduct," Silva-Trevino's direction to consider documents outside the record of conviction constituted an invalid exercise of the Attorney General's authority. See Prudencio, 669 F.3d at 482. In 2015, after a circuit split had developed on whether adjudicators should follow the Silva-Trevino framework, the Attorney General vacated the Silva-Trevino decision. See In re Silva-Trevino, 26 I. & N. Dec. at 552-53. The IJ rejected both Khan's motion to reopen and his later motion to reconsider the rejection of the motion to reopen because they were filed well outside the authorized time limits2 and Khan had not established good cause for the delay. See Gov't Opp. 5-6, Exs. H, I, Khan's appeal of the IJ's ruling is currently pending at the Board of Immigration Appeals. See id. at 6, Ex. J.
In June 2017, Khan was found in the United States and arrested. On June 22, 2017, a grand jury returned an indictment charging him with one count of illegal reentry after deportation or removal, in violation of 8 U.S.C. § 1326(a). [Dkt. No. 15]. Specifically, the indictment alleged that Khan was removed from the United States on September 20, 2011, did not obtain the consent of the Attorney General or the Secretary of Homeland Security to reapply for admission to the United States, and was found within the Eastern District of Virginia on June 4, 2017. See id. After Khan's Motion to Dismiss the Indictment was denied, he proceeded to a bench trial on a stipulated record,3 in which the parties stipulated, and the Court found, that:
[Dkt. No. 46]. The parties agreed that nothing in those stipulations precluded defendant from challenging the validity of his deportation order pursuant to 8 U.S.C. § 1326(d) or appealing an adverse decision regarding such a challenge. Based on the stipulation of facts, which established all necessary elements of illegal reentry, the Court found defendant guilty of illegal reentry in violation of 8 U.S.C. § 1326(a). [Dkt. No. 45].
Because the stipulation of facts established all elements of the crime, the only outstanding legal issue is defendant's collateral attack on the underlying deportation order. For the reasons that follow, defendant's Motion to Dismiss the Indictment has been denied.
A defendant charged with illegal reentry can collaterally attack his underlying deportation order if and only if he can demonstrate that: (1) he 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 him of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d). The defendant has the burden to satisfy all three requirements. If he meets his burden, "the illegalreentry charge must be dismissed as a matter of law." United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005).
Khan claims that his underlying deportation order, for which he did not seek timely review in 2011, is invalid and the current illegal reentry charge should be dismissed. Because Khan cannot meet any of the three requirements for collaterally attacking a deportation order, Khan's Motion to Dismiss the Indictment has been denied.
Khan argues that he is excused from having to meet the initial two requirements—that he exhausted his administrative remedies and that his deportation proceedings improperly deprived him of the opportunity for judicial review—because the IJ never notified him of his right to appeal. Khan maintains that this failure "constitutes a complete deprivation of administrative and judicial review within the meaning of section 8 U.S.C. § 1326(d)." Def. Mem. 5. To support this proposition, Khan cites United States v. Mendoza-Lopez, 481 U.S. 828, 840 (1987), El Shami, 434 F.3d at 664, and ...
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