United States v. Perez-Almeida, Criminal No. 3:19-cr-61

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtRobert E. Payne Senior United States District Judge
Decision Date21 August 2019
Docket NumberCriminal No. 3:19-cr-61


Criminal No. 3:19-cr-61


August 21, 2019


This matter is before the Court on DEFENDANT'S MOTION TO DISMISS COUNT ONE (ECF No. 20) (the "Motion to Dismiss"). For the reasons set forth below, the Motion to Dismiss will be denied.


I. Procedural Context

David Perez-Almeida ("Perez-Almeida") is charged in a three-count indictment with illegal reentry, pursuant to 8 U.S.C. § 1326(a) (COUNT I); possession of a firearm by an alien illegally and unlawfully in the United States, pursuant to 18 U.S.C. § 922(g)(5) (COUNT II); and possession of cocaine, pursuant to 21 U.S.C. § 844 (COUNT III). See ECF No. 3. He has moved to dismiss COUNT I (the "Motion to Dismiss") and to suppress evidence related to COUNTS II and III (the "Motion to Suppress") (collectively, the "Motions").1 See ECF Nos. 19 and 20.

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The parties fully briefed both Motions, see ECF Nos. 19, 20, 22, 23, 25, 27, and the Court heard oral argument and received evidence on the Motions on June 18 and June 20, 2019.2 Thereafter, the Court ordered the parties to submit supplemental briefing setting out their positions on both Motions in perspective of the evidence adduced during the evidentiary hearings. See ECF No. 39. The parties have submitted their supplemental briefing, and the Motion to Dismiss is ripe for decision.3

II. Factual Background4

Perez-Almeida is a citizen of Mexico who does not have legal status in the United States. See ECF No. 22 at 1-3. On August 8, 2002, Perez-Almeida was stopped by Border Patrol agents near the United States-Mexico border. Gov't Ex. 2. Because he did not have any outstanding warrants or prior immigration history, he was given the privilege of a so-called "voluntary return," and he immediately

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returned to Mexico (the return also appears to have occurred on August 8, 2002). Gov't Ex. 2; Hr'g Tr. 121 (testimony of Deportation Officer Richard Tine ("Tine")). Perez-Almeida confirmed that this "voluntary return" occurred. Hr'g Tr. 94-95.

Shortly thereafter, on or about August 28, 2002, Perez-Almeida returned to the United States.5 He worked on a dairy farm in Vermont. Hr'g Tr. 85, 90. On March 15, 2005, Perez-Almeida (then age 19), was encountered by New York State Police when the vehicle in which he was traveling broke down. Def. Ex. 1; Hr'g Tr. 86. Thereafter, Perez-Almeida and the other occupants were interviewed by Border Patrol Agents. Def. Ex. 1. In the interviews, all of the vehicle's occupants "freely admitted to be[ing] from Mexico and illegally in the United States." Id. Perez-Almeida and the other passengers were brought to the Border Patrol office in Champlain, New York. Id.

On March 16, 2005, Perez-Almeida was personally served with a Form I-862, or a Notice to Appear (hereinafter, the "NTA"). Gov't

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Ex. 3. The NTA informed Perez-Almeida (in English),6 inter alia, that he is not a United States citizen or national; that he is a native of Mexico; that he had arrived in Texas on or about August 28, 2002; and then cited two provisions of the Immigration and Nationality Act ("INA") under which Perez-Almeida was subject to removal. Id. The NTA also informed Perez-Almeida that his immigration hearing would be "on a date to be set at a time to be set." Id. The hearing date was not set at the time of service of the NTA because the computer system was not working. Def. Ex. 1; Hr'g Tr. 89.

On the NTA, Perez-Almeida's address was listed as "156 West Road Whiting Vermont 05778" (hereinafter, the "West Road address"). Gov't Ex. 3. The "Certificate of Service" on the NTA recites that Border Patrol Agent Catherine Edwards ("Edwards") "provided oral notice in the Spanish language of the time and place

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of his or her hearing and of the consequences of failure to appear."7 Id. Perez-Almeida signed the "Certificate of Service" and his fingerprint is affixed thereto. Id.

Edwards also served Perez-Almeida (on March 16, 2005) with a Form I-826, or a "Notificación de Derechos y Solicitud de Resolución," explaining his rights, including his right to go before an immigration judge. Gov't Ex. 5; Def. Ex. 3. The Form I-826 is written in Spanish and Edwards served it on Perez-Almeida in Spanish. Id. On the Form I-826, Perez-Almeida indicated that he wanted a hearing before an immigration judge. Id.; Hr'g Tr. 87 (Perez-Almeida's testimony that he "wanted to see a judge").

That same day (March 16, 2005), Edwards also provided Perez-Almeida with a Form I-830, or a "Notice to EOIR: Alien Address," indicating that Perez-Almeida's address was the West Road address,8 and that Edwards had advised Perez-Almeida of the requirement to update immigration officials of any change of address. Gov't Ex. 4. Perez-Almeida then was released on "personal recognizance," Gov't Ex. 4, pending his immigration hearing, notice of which would be mailed to the West Road address. Def. Ex. 1; Hr'g Tr. 89.

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Thereafter, on April 20, 2005, the immigration court in Buffalo, New York mailed a Notice of Hearing ("NOH") to Perez-Almeida at the West Road address. Def. Ex. 4; Gov't Ex. 6. The NOH, written in English, stated that Perez-Almeida's immigration hearing would take place on May 24, 2005 at 9:00 a.m. at the specified immigration court in Buffalo, New York. Id. The NOH also recited the consequences of failing to appear at the hearing, including that Perez-Almeida could be removed in absentia. Id.

The "Certificate of Service" on the bottom of the NOH lists a handwritten date of service of April 20, 2004 (although the top of the form lists a printed date of April 20, 2005). Id. The "Certificate of Service" indicates by the handwritten letter "M" that it was served by mail to Perez-Almeida, and by the handwritten letter "P" that it was personally served on Immigration and Naturalization Service ("INS") officials. Id.; Hr'g Tr. 134-35 (testimony of Officer Tine explaining that "M" signifies mail service and "P" signifies personal service). Officer Tine testified that the handwritten date of April 20, 2004 "would appear to be incorrect" based on other information on the form (e.g. the printed date at the top, the stamped date at the top, and the hearing date of May 24, 2005), and that the NOH appeared to have been generated on April 20, 2005. Hr'g Tr. 136.

Perez-Almeida testified that he never received the NOH or any

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notice from the immigration court telling him about his immigration hearing. Hr'g Tr. 89-90; Def. Ex. 6 (affidavit of Perez-Almeida stating "I did not receive the Notice of Hearing, or any other mailings from the immigration court"). He further testified at the hearing that about 15 to 18 individuals were residing in the house in which he lived at the West Road address, Hr'g Tr. 92, and that all individuals in the house received mail in the same mailbox. Id. 90; see also Def. Ex. 8 (declaration of the Postmaster General that "mail addressed to various individuals is delivered to" the West Road address and that there "is only one physical mailbox for all of the residents who live at this address"). Perez-Almeida testified that if he had received notice of his immigration hearing, he would have gone to the hearing and requested to stay in the United States or to return to Mexico voluntarily. Hr'g Tr. 90-91.

Perez-Almeida did not appear at the May 24, 2005 removal hearing, and was ordered removed to Mexico in absentia (the "2005 Removal Order"). Gov't Ex. 7. Immigration officials mailed to Perez-Almeida at the West Road address the Order of the immigration judge under a cover letter informing Perez-Almeida that his removal was final unless he filed a motion to reopen. Id.; Hr'g Tr. 137. The "Certificate of Service" for this letter (and the accompanying Order) states that it was served by mail to Perez-Almeida and

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personally served on INS officials on May 27, 2005 (three days after the immigration hearing). Gov't Ex. 7; Hr'g Tr. 137-38 (testimony of Officer Tine explaining service).

As a result of the 2005 Removal Order, a Form I-205, or "Warrant of Removal/Deportation," was issued for Perez-Almeida on June 7, 2005. Gov't Ex. 8. This document informs "any officer of the United States Immigration and Customs Enforcement" that Perez-Almeida "is subject to removal/deportation from the United States, based upon a final order by. . .an immigration judge in exclusion, deportation, or removal proceedings." Id. No immediate action was taken to enforce the Form I-205.

Then, on September 28, 2005, Perez-Almeida was stopped by Vermont State Police for speeding. Def. Ex. 5; A-file 14-B;9 Hr'g Tr. 91 (testimony of Perez-Almeida). The state trooper contacted the Border Patrol, which confirmed that Perez-Almeida had an outstanding removal order against him (the 2005 Removal Order). A-file 14-B. The trooper transported Perez-Almeida and a passenger to the police barracks; thereafter, immigration officials took custody of Perez-Almeida. Id. Perez-Almeida was informed that he had been removed in absentia earlier in the year. Hr'g Tr. 91-92.

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On October 18, 2005, Perez-Almeida was removed to Mexico (he departed on foot), pursuant to the 2005 Removal Order. Gov't Ex. 8; Hr'g Tr. 138. He did not seek to reopen his in absentia removal for lack of notice,10 or otherwise challenge his removal in any way.

After his October 2005 removal, Perez-Almeida again re-entered the United States without permission "[a]bout six months later, more or less." Hr'g Tr. 98 (testimony of Perez-Almeida). Perez-Almeida testified that he returned to the United States because "my life was here." Id. Perez-Almeida did not have a documented interaction with immigration officials again until August 20, 2014, when he was apprehended in Michigan. A-file 17-B. On August 21, 2014, Perez-Almeida was issued a Form I-871, or "Notice of Intent/Decision to Reinstate Prior Order." Gov't Ex. 9. The Form I-871...

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