United States v. Sanchez-Porras
| Decision Date | 27 September 2019 |
| Docket Number | CR 19-1374 KG |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. BENJAMIN SANCHEZ-PORRAS, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER is before the Court on Defendant Benjamin Sanchez-Porras's "Motion to Dismiss the Indictment" ("Motion"). ECF 23.1 The Motion is fully briefed. See ECFs 26 (United States' Response), 32 (Defendant's Reply). After holding an evidentiary hearing and reviewing the parties' briefing and attached exhibits as well as relevant case law, the Court recommends for the following reasons that the Motion be denied.
The United States charged Sanchez-Porras with illegal reentry under 8 U.S.C. §§ 1326(a) and (b). See ECF 12. In the Motion, Defendant mounts an attack on the underlying deportation order, which forms the foundation for the instant charge. The indictment must be dismissed, Defendant submits, because he can establish that the underlying deportation order—the validity of which is an essential element of the indictment—was unlawful. Defendant maintains that the immigration court proceeding that resulted in his removal from the United States was "fundamentally unfair" because it was based on deficient legal representation that not only "improperly deprived [him] of the opportunity for judicial review," but also precluded him from exhausting his administrative remedies. Mot. 1-4 ( § 1326(d)(1)-(3)). Consequently, heasserts that he may permissibly "challenge the validity of the deportation order" on which the indictment was based. Id. at 3 (quoting § 1326(d)).
Defendant specifically claims that his retained counsel during the 1999 removal proceeding failed to uncover that the underlying felony offense of "possession of marijuana with intent to distribute"—which provided the basis for his deportation—was not the offense of which Defendant had been convicted. Instead, in exchange for Defendant's guilty plea to a state drug tax stamp felony, the marijuana distribution charge had been dismissed. Defendant now complains that his immigration counsel erroneously advised him to admit to having committed that previously-dismissed offense, concede removal, and waive his right to appeal. Defendant contends that, but for the ineffective assistance he received from his retained immigration counsel, he would not have admitted to having committed the dismissed charge and the outcome of the immigration proceeding would have been different.
The United States responds that Defendant cannot carry his burden to establish the elements of § 1326(d), even assuming that Defendant's counsel provided ineffective assistance at the removal proceeding. The United States further emphasizes that, among other things, Defendant failed to exhaust his administrative remedies as required by § 1326(d)(1) because he knowingly waived his right to appeal and, irrespective of counsel's deficiencies, failed to pursue available administrative relief. The United States also asserts that Defendant failed to show that he was improperly deprived of judicial review under § 1326(d)(2). To finish, the United States posits that Defendant simply cannot establish that the removal order was fundamentally unfair—as required by § 1326(d)(3)—because of Defendant's felony conviction under Iowa's drug tax stamp law, Iowa Code Ann. §§ 453B.1(3) & 453B.12. According to the United States, this felony could have properly served as an independent basis for removal under either 8 U.S.C. §§1227(a)(2)(B)(i) () or 1227(a)(2)(A)(iii) (aggravated felony conviction).
The Court held an evidentiary hearing on September 16, 2019. See ECFs 33, 35, 36. At the hearing, the parties stipulated to the admission into evidence of all documents that the parties had appended to their briefing. ECF 38, Evid. Hr'g 17:1-3. The Court also allowed, over the Government's objection, the testimony of immigration attorney Orlando Mondragon and Defendant himself. Id. 17:9-16. Among other thing, Mr. Mondragon's testimony focused on whether Iowa Code Ann. §§ 453B.1(3) & 453B.12 would have qualified Defendant for removal as well as whether Defendant would have been eligible for discretionary relief from removal. Id., passim. Defendant's testimony concerned counsel's performance at the removal proceeding, the circumstances surrounding the underlying conviction, and his other arrests. Id. 43:19-65:6.
For purposes of the Motion, and as a result of the parties' stipulation at the evidentiary hearing, the Court accepts as uncontested the facts shown by the parties' exhibits.
In May 1998, Defendant was arrested in Iowa and charged in state court with two felonies: (1) knowingly possessing marijuana with the intent to deliver, in violation of Iowa Code Ann. § 124.401(1)(d) (1997) and (2) knowingly possessing marijuana weighing more that 42.5 grams with the intent to deliver, without affixing the appropriate tax stamp, in violation of Iowa Code Ann. §§ 453B.1(3) & 453B.12 (1997). Gov. Resp. Ex. A. Pursuant to a plea agreement, Defendant pled guilty to the tax stamp violation. Id. Ex. C. The possession with intent to deliver charge wasultimately dismissed pursuant to the plea agreement when the appeal time expired for Defendant's conviction on Count II. Id.2
On March 15, 1999, Defendant was detained by the former Immigration and Naturalization Service and personally served with a Notice to Appear ("NTA"). Def.'s Mot. Ex. A (Affidavit of Defendant); Gov. Resp. Ex. D (Notice to Appear). The NTA alleged that Defendant was subject to removal because he was convicted of "Possession of a Controlled Substance with the Intent to Deliver, to wit: Marijuana, in violation of Code of Iowa, Section 453.B.1(3) and 453B.12, 1997." Resp. Ex. D. As pointed out by both parties, the NTA incorrectly listed the offense of conviction by labeling it with Count I's title ("Possession of a Controlled Substance with the Intent to Deliver") but citing to the statutory provisions for the drug tax stamp violation of Count II (Iowa Code Ann. §§ 453B.1(3) & 453B.12). Compare Resp. Ex. A with Resp. Ex. D.3 The NTA also informed Defendant of his "right to appeal an adverse decision by the immigration judge." Resp. Ex. D at 2.
Defendant requested an immediate hearing, which was held before an Immigration Judge ("IJ") on April 20, 1999. Attorney Joseph Rey, Sr. represented Defendant at the hearing. Mot.Ex. A; Resp. Exs. E (minutes of removal proceeding), F (Notice of Rights), G (Removal Proceeding Audio). Through counsel, Defendant admitted to the four allegations charged in the NTA. Resp. Ex. G, 1:17.4 He also conceded removability for committing an aggravated felony in violation of 8 U.S.C. § 1227(a)(2)(A)(iii), and thereafter requested no relief. Id. at 1:24-1:29, 1:35-1:45. Defendant then confirmed that he "want[ed] to be removed from the United States to Mexico." Id. at 1:54. The IJ explained to Defendant that he would lose his resident status and be permanently barred from the United States. Id. Nonetheless, Defendant reaffirmed that he wanted to be removed, accepted the IJ's removal order, and, through counsel, waived his appeal right. Id. at 2:10-4:45. Defendant was removed the same day. Id. Ex. I.
Nearly twenty years later, on February 14, 2019, Homeland Security Investigations arrested Defendant in Las Cruces, New Mexico and charged him with illegal reentry after deportation in violation of § 1326(a). See ECF 1.
Conviction of a § 1326 illegal reentry offense generally requires that the government establish: "(1) that the alien 'has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding'; and (2) that the alien thereafter has 'enter[ed], attempt[ed] to enter, or is at any time found in, the United States.'" United States v. Adame-Orozco, 607 F.3d 647, 650-51 (10th Cir. 2010) (brackets in original) (quoting § 1326). In limited instances, a defendant who is prosecuted under § 1326 for illegal reentry may challenge in that criminal proceeding the validity of a prior removal order. 8 U.S.C. § 1326(d); see United States v. Mendoza-Lopez, 481 U.S. 828, 830-32 (1987).
To collaterally attack the previous removal order, an alien must show that:
§ 1326(d)(1)-(3).
"Because a final deportation order enjoys a presumption of regularity, once the government shows that the alien was deported while such an order was outstanding, the burden shifts to the defendant-alien, and it is he who must prove each of § 1326(d)'s elements to overcome the presumed legality of the earlier deportation order." Adame-Orozco, 607 F.3d at 651 (citing United States v. Arevalo-Tavares, 210 F.3d 1198, 1200 (10th Cir. 2000) (per curiam)); United States v. Almanza-Vigil, 912 F.3d 1310, 1316 (10th Cir. 2019) ().
In reviewing a collateral attack on a previous removal order, the Court applies the law that existed at the time and place of Defendant's removal proceedings, though later judicial decisions, such as those involving "statutory interpretation are fully retroactive because they do not change the law, but rather explain what the law has always meant." United States v. Rivera-Nevarez, 418 F.3d 1104, 1107 (10th Cir. 2005).
As noted above, if Defendant fails to carry his burden on any one element of § 1326(d), the instant Motion must be denied. Therefore, in its discretion, the Court will begin its analysis with § 1326(d)(3), whether the entry of the removal order was fundamentally unfair,...
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