United States v. Sanchez-Chavez

• Decision Date: 16 February 2023
• Docket Number: 5:22-cr-40042-TC
• Parties: UNITED STATES OF AMERICA, Plaintiff v. JUAN SANCHEZ-CHAVEZ, Defendant
• Court: U.S. District Court — District of Kansas

UNITED STATES OF AMERICA, Plaintiff
v.
JUAN SANCHEZ-CHAVEZ, Defendant

No. 5:22-cr-40042-TC

United States District Court, D. Kansas

February 16, 2023

MEMORANDUM AND ORDER

Toby Crouse United States District Judge

Juan Sanchez-Chavez is charged under 8 U.S.C. § 1326 for reentering the United States after being convicted of an aggravated felony and removed to Mexico. Doc. 1. He moves to dismiss the indictment, claiming the removal order underlying his reentry charge was unconstitutionally entered by an official who had not been appointed in accordance with the Constitution's Appointments Clause. Doc. 13. For the following reasons, his motion is denied.

I

Sanchez-Chavez is an alien, Doc. 1 at 1, and is alleged to be a citizen of Mexico, Doc. 13 at 2; Doc. 14 at 1. In 2009, he was convicted in Missouri of Possession of a Controlled Substance with Intent to Distribute, a violation of state law, for which he received a 10-year prison sentence. Doc. 1 at 1; Doc. 13-1 at 1-2.

Four years later, Department of Homeland Security officers met Sanchez-Chavez at the Missouri prison where he was serving his sentence. Doc. 13 at 2. The officers issued Sanchez-Chavez two forms. Id. at 2-3. The first was a Notice to Appear, which alleged that Sanchez-Chavez was a Mexican citizen, that he illegally entered the United States, and that he had been convicted of possessing cocaine with intent to distribute. Doc. 13-2. The second was a Notice of In-

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tent to Issue a Final Administrative Removal Order, Form I-851 (Notice of Intent), which told him the removal would proceed “without a hearing before an Immigration Judge” because he had “been convicted of an aggravated felony” and that he could petition for review “in the appropriate U.S. Circuit Court of Appeals.” Doc. 13-3 at 1. Sanchez-Chavez signed the Notice of Intent, identified Mexico as the location to remove him to, and expressly waived his right to appeal the decision. Id at 2; Doc. 13 at 3.

The next day, a DHS officer entered the Final Administrative Removal Order to remove Sanchez-Chavez to Mexico. Doc. 13 at 4; Doc. 14-1 at 1. The Authorized Official who signed that Order was a Supervisory Detention and Deportation Officer of the DHS. Doc. 13 at 4; Doc. 14-1 at 1. Sanchez-Chavez was removed to Mexico in October 2013. Doc. 13-8 at 1; Doc. 14 at 2.

In June 2019, DHS officers found Sanchez-Chavez again in jail in Johnson County, Kansas. Doc. 13 at 6. The following month, the DHS issued Sanchez-Chavez a notice that it intended to reinstate the removal order against him. Id.; Doc. 13-8. But instead, he was charged with illegal reentry under 8 U.S.C. § 1326, pleaded guilty, and was imprisoned for 18 months. Doc. 13 at 7; Judgment in a Criminal Case at 1, United States v. Sanchez-Chavez, No. 19-20054 (D. Kan. Jun. 23, 2020). Sanchez-Chavez never contested the determination that he had been properly removed. Doc. 13 at 7. After he served his sentence, he was removed to Mexico again in October 2020. Id.; Doc. 1 at 1.

Sanchez-Chavez was apprehended in Kansas again in 2022 and was transferred to the custody of the U.S. Marshals. Doc. 13 at 7. He is again charged with illegal reentry. Doc. 1 at 1.

II

Sanchez-Chavez moves to dismiss the sole count of the indictment, illegal reentry, by collaterally attacking the 2013 removal order under 8 U.S.C. § 1326(d). Doc. 13 at 1. He claims the officer who entered the removal order was not appointed in accordance with the Appointments Clause, so the removal order was unlawful. Id. That motion is denied because Sanchez-Chavez has not met the requirements to bring a collateral attack under section 1326(d).

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A

An alien charged with illegal reentry may challenge the legality of the underlying removal order if “the deportation proceeding effectively eliminate[d] the right of the alien to obtain judicial review.” United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987); see also United States v. Almanza-Vigil, 912 F.3d 1310, 1316 (10th Cir. 2019). So to collaterally attack a removal order, a defendant must demonstrate that he “exhausted any [available] administrative remedies,” “the deportation proceedings . . . improperly deprived [him] of the opportunity for judicial review,” and “the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d); see also United States v. Palomar-Santiago, 141 S.Ct. 1615, 1622 (2021) (“[E]ach of the statutory requirements of § 1326(d) is mandatory.”). The removal order is presumed valid, so to overcome that presumption, the alien bears the burden to show each of section 1326(d)'s requirements has been met. United States v. Gonzalez-Fierro, 949 F.3d 512, 521 (10th Cir. 2020) (citing United States v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010)).

B

Sanchez-Chavez's motion is denied. Assuming without deciding that Sanchez-Chavez exhausted all available administrative remedies,^[1]

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he still may not bring a collateral attack on the 2013 removal order because he had an opportunity for judicial review and the entry of the order was not fundamentally unfair.^[2]

1. After an alien receives an expedited removal order, he has a waivable “opportunity to apply for judicial review” within 14 days. 8 U.S.C. § 1228(b)(3). Judicial review of removal orders is governed by 8 U.S.C. § 1252, three parts of which are relevant here. First, section 1252(a)(1) grants district courts limited authority to hear appeals from final removal orders. Second, section 1252(a)(2)(C) strips federal courts of “jurisdiction to review any final order of removal against an alien who is removable by reason of having committed,” among other things, an aggravated felony. But section 1252(a)(2)(D) clarifies that that provision does not “preclud[e] review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals.” Third, section 1252(d) allows a court to review a final removal order only if “the alien has exhausted all administrative remedies available to the alien as of right” and “another court has not decided the validity of the order.” In sum, after an alien who has been convicted of an aggravated felony receives an expedited removal order, the alien has 14 days in which to raise fully exhausted legal or constitutional claims for judicial review in the appropriate...