United States v. Munoz-Giron, Criminal Action No. 4:13cr17.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtHENRY COKE MORGAN
Citation943 F.Supp.2d 613
PartiesUNITED STATES, v. David Edmundo MUNOZ–GIRON, Defendant.
Docket NumberCriminal Action No. 4:13cr17.
Decision Date01 May 2013

943 F.Supp.2d 613

David Edmundo MUNOZ–GIRON, Defendant.

Criminal Action No. 4:13cr17.

United States District Court,
E.D. Virginia,
Newport News Division.

May 1, 2013.

[943 F.Supp.2d 616]

Rebecca A. Staton, Department of Justice, Washington, DC, for United States.

[943 F.Supp.2d 617]


HENRY COKE MORGAN, JR., Senior District Judge.

This matter is before the Court on Defendant David Edmundo Munoz–Giron's (“Defendant” or “Munoz–Giron”) Motion to Dismiss the Indictment (“Motion”). Def.'s Mot. to Dismiss, ECF No. 13 (hereinafter, “Doc. 13”). On March 26, 2013, the Court convened a hearing and ruled from the bench. The Court GRANTED Defendant's Motion and now issues this Opinion and Order setting forth the reasons for its ruling in further detail.

A. Factual Background1

Defendant was born in 1976 in Honduras, and came to the United States in 1987 as a lawful permanent resident. Doc. 13. Between 1994 and 1995, Defendant was convicted of drug possession five times, once for possession of cocaine and four times for possession of Marijuana. Gov't Opp'n to Def.'s Mot. to Dismiss, ECF No. 17 (hereinafter, “Doc. 17”).2 In August 1995, deportation proceedings were commenced against Defendant; a hearing was held in absentia on July 26, 1996, and Defendant was removed from Miami, Florida, to Honduras on August 20, 1996.3

1. The Deportation Proceeding

On January 2, 1996, the Order to Show Cause and Notice of Hearing—the charging document in an immigration action—was personally served on Defendant while he was in custody. Doc. 13, Ex. 1 (hereinafter, “Order to Show Cause”). The Order to Show Cause indicated that Defendant was subject to deportation pursuant to 8 U.S.C. §§ 1227(a)(2)(B)(i) and (a)(2)(A)(iii), a consequence of Defendant's convictions for controlled substance offenses. Id.

At some time after receiving the Order to Show Cause, Defendant retained counsel. Doc. 13 at 2.4 On February 6, 1996, Defendant appeared in Immigration Court, where his hearing was rescheduled for February 23, 1996. Id.; see also Doc. 13, Ex. 4. The matter was continued several times, until on June 10, 1996, the deportation hearing was set for July 26, 1996. Doc. 13 at 2; see also Doc. 17 at 2.

The Government maintains that a letter providing Defendant with notice of the July 26, 1996 hearing was sent to Defendant via certified mail on June 10, 1996.

[943 F.Supp.2d 618]

Doc. 17 at 2; see also Doc. 17, Exs. 2 (notice), 3 (signed certified receipt).5 In the Motion, Defense counsel indicates that he was unable to find any evidence that notice of the scheduled date was sent to Defendant. Doc. 13 at 2. On June 26, 1996, Defendant was arrested and held at the Dade County Jail in Florida. Doc. 17 at 2.6 The next day, the Immigration and Naturalization Service (“INS”) contacted the Dade County Jail to place an immigration detainer on Defendant. Id.; see also Doc. 17, Ex. 5. 7 On July 26, 1996, Defendant was ordered deported in absentia. Doc. 13 at 3; see also Doc. 13, Ex. 7.8 Twenty-five days later, on August 20, 1996, the INS removed Defendant to Honduras. Doc. 13 at 3.

2. The Instant Offense

On December 17, 2012, Immigration and Customs Enforcement (“ICE”) agents arrested Defendant in Hampton, Virginia. Doc. 17 at 3. That day, Defendant completed a Record of Sworn Statement, in which he admitted that he had reentered the United States in 2002. Id.

B. Procedural History

On January 16, 2013, Defendant was indicted by a federal grand jury in Norfolk, Virginia on one count of Illegal Re-entry of a Previously Deported Alien, in violation of 8 U.S.C. § 1326(a). Indictment, ECF No. 1 (hereinafter, “Doc. 1”). On February 14, 2013, Defendant filed an unopposed Motion for Leave to File After the Deadline (“Motion for Leave to File”) and the instant Motion. Def.'s Mot. for Leave to File After Deadline, ECF No. 12 (hereinafter, “Doc. 12”); see also Doc. 13. The Court granted Defendant's Motion for Leave to File on February 19, 2013. Order Granting Leave to File Mot. After Deadline, ECF No. 14 (hereinafter, “Doc. 14”). On February 27, 2013, the Government filed a Motion for Extension of Time to File Response/Reply (“Motion for Extension”), seeking an extension until March 15, 2013, to allow time for the Government to obtain documents from the Immigration Court that conducted Defendant's deportation proceedings. Gov't Mot. for Extension of Time to File Response, ECF No. 15 (hereinafter, “Doc. 15”). The Court granted the Motion for

[943 F.Supp.2d 619]

Extension on March 5, 2013. Order Granting Mot. for Extension of Time to File Response, ECF No. 16 (hereinafter, “Doc. 16”). On March 15, 2013, the Government filed its Opposition. Doc. 17. The Defendant filed his Response on March 19, 2013. Def.'s Reply to Gov't Opp'n, ECF No. 18 (hereinafter, “Doc. 18”).


“[T]he Fifth Amendment requires only that, ‘[a]n indictment returned by a legally constituted and unbiased grand jury, ... if valid on its face, is enough to call for trial of the charges on the merits.’ ” United States v. Mills, 995 F.2d 480, 487 (4th Cir.1993) (quoting Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956)). Thus, generally, “courts lack authority to review either the competency or sufficiency of evidence which forms the basis of an indictment and may not quash indictments when the errors which produce them, such as prosecutorial misconduct or violation of a statute, do not affect substantial rights.” Id.

In United States v. Mendoza–Lopez. however, the United States Supreme Court held that due process requires that an alien charged with illegal reentry, in violation of 8 U.S.C. § 1326, have the opportunity to collaterally challenge the underlying deportation proceeding, if the proceeding violated the alien's rights. 481 U.S. 828, 837, 842, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987); see also8 U.S.C. § 1326(d) (codifying the Mendoza–Lopez holding). Thus, the success of Defendant's Motion hinges on whether Defendant can successfully launch a collateral challenge to his 1996 deportation proceeding, upon which the single-count Indictment relies.


“Because a deportation order is an element of the offense of illegal reentry, the Supreme Court has recognized that an alien can collaterally attack the propriety of the original deportation order in the later criminal proceeding.” United States v. El Shami, 434 F.3d 659, 663 (4th Cir.2005) (citing Mendoza–Lopez, 481 U.S. at 838–39, 107 S.Ct. 2148). To successfully launch a collateral challenge against an underlying deportation proceeding, a defendant must demonstrate that: “(1) the alien 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 the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(1)-(3): see also Mendoza–Lopez, 481 U.S. at 840, 107 S.Ct. 2148;United States v. Aquino–Chacon, 905 F.Supp. 351, 353 (E.D.Va.1995)aff'd,109 F.3d 936 (4th Cir.1997). Because the requirements of 8 U.S.C. § 1326(d) are listed in the conjunctive, “a defendant must satisfy all three in order to prevail;” where this requirement is met, the illegal reentry charge must be dismissed as a matter of law. El Shami, 434 F.3d at 663 (quoting United States v. Wilson, 316 F.3d 506, 509 (4th Cir.2003)).

A. Whether Defendant Exhausted Available Administrative Remedies

Section 1326(d) requires a defendant to demonstrate that he has exhausted all available administrative remedies. 8 U.S.C. § 1326(d)(1). Satisfaction of the § 1326(d)(1) exhaustion requirement depends on the particular circumstances of removal, but generally requires that an individual that has been ordered deported either move to reopen or rescind their deportation hearing, or, if available, appeal the deportation order. See, e.g.,

[943 F.Supp.2d 620]

United States v. Copeland, 376 F.3d 61, 67 (2d Cir.2004). If the motion to reopen or rescind is denied, the individual must appeal the denial to the Bureau of Immigrant Affairs (“BIA”). Id. (finding such an appeal “fulfills the purposes of the exhaustion requirement” because the proceeding allows the BIA to correct any errors and allows the alien to supplement the record with more evidence.). While, ordinarily, statutory exhaustion requirements are not subject to exceptions, the exhaustion requirement in § 1326(d) must be excused where an alien's waiver of administrative review was not knowing and intelligent. United States v. Sosa, 387 F.3d 131, 136 (2d Cir.2004).

In Sosa, the United States Court of Appeals for the Second Circuit held that the defendant's waiver of his right to appeal was not knowing and intelligent because the Immigration Judge (“IJ”) did not inform him of his right to apply for relief from deportation. Id. at 137. In explaining their holding, the court noted that in Mendoza–Lopez, the Supreme Court excused the failure to exhaust administrative remedies where proceedings denied a defendant the opportunity for judicial review because the IJ failed to fulfill its obligation to adequately inform an alien of available options for relief. Id. This failure was intolerable, in light of the removal system's reliance “on IJs to adequately explain the law to pro se aliens.” Id. (quoting Copeland, 376 F.3d. at 71).

Several opportunities for administrative relief were available to an alien whose deportation order was entered in absentia in July 1996. Such an individual may have been eligible to seek rescission of the deportation order. See8 U.S.C. § 1252b(c)(3)(B) (1994) (noting that an alien that demonstrates that he was in Federal or State custody may be eligible to seek rescission) (repealed 1996). However, an alien whose deportation order was entered in absentia also forfeits certain rights. See, e.g., 8 C.F.R. § 242.21(a) (1997) (prohibiting appeal to the BIA).


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