United States v. Silva

• Decision Date: 14 May 2018
• Docket Number: Case No. 3:17cr125
• Citation: 313 F.Supp.3d 660
• Parties: UNITED STATES of America v. Omar Villarreal SILVA, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

313 F.Supp.3d 660

UNITED STATES of America

v.Omar Villarreal SILVA, Defendant.

Case No. 3:17cr125

United States District Court, E.D. Virginia, Richmond Division.

Signed May 14, 2018

S. David Schiller, Office of the U.S. Attorney, Richmond, VA, for United States of America.

MEMORANDUM OPINION

M. Hannah Lauck, United States District Judge

This matter comes before the Court on Defendant Omar Villarreal Silva's Second Motion to Dismiss the Indictment (the "Second Motion to Dismiss"). (ECF No. 28.) The United States responded, (ECF No. 31), and Villarreal replied, (ECF No. 32). On May 11, 2018, the Court heard argument on the Second Motion to Dismiss.¹ The Motion to Dismiss is ripe for disposition. For the reasons discussed below, the Court will deny the Second Motion to Dismiss.

I. Factual and Procedural Background

Villarreal, a citizen of Mexico, first came to the United States in 1996 at the age of seventeen. He has six siblings, three of whom currently live in the United States. Villarreal also has three children, ages sixteen, twelve, and three. All his children were born in the United States to Villarreal and his partner, and they live in Hopewell, Virginia. While in the United States, Villarreal worked in construction and sent money to his parents in Mexico every month.

Villarreal has twice been removed from the United States under orders of removal: first on September 1, 2014, and later on November 20, 2014. He also has been apprehended by United States Border Patrol and allowed to voluntarily return to Mexico five times: twice in 1998, and three times in 1999. Villarreal's criminal history currently includes nine criminal convictions within the United States—six misdemeanor convictions and three felony convictions.

In February of 2014, Chesterfield County, Virginia, police officers arrested Villarreal for "DWI, Third Offense," and Villarreal was found guilty. Villarreal's arrest and conviction prompted the police to notify immigration officials, who interviewed Villarreal, determined that he was removable, and lodged a detainer. On September 2, 2014, Villarreal appeared before an Immigration Judge in Arlington, Virginia, who ordered Villarreal removed from the United States (the "September 2, 2014 Order of Removal"). On September 11, 2014, immigration officials physically removed Villarreal from the country and returned him to Mexico.

On November 20, 2014, Villarreal attempted to re-enter the United States by presenting a passport that was not his at the El Paso, Texas, Port of Entry. After determining that the passport did not belong to Villarreal, immigration officials placed him into expedited removal proceedings and issued an Order of Removal (the "November 20, 2014 Order of Removal").² The November 20, 2014 Order of Removal states that Villarreal was deemed removable pursuant to 8 U.S.C. § 1225(b)(1)³ (the "Expedited Removal Statute") because immigration officials determined that he was inadmissible under sections 212(a)(6)(C)(ii),⁴ (the "Fraudulent Entry Statute"), and (7)(A)(i)(I),⁵ (the "No Entry Document Statute"), of the Immigration and Nationality Act. The November 20, 2014 Order of Removal states that on November 20, 2014, Villarreal "falsely represented [himself] to be a United States citizen ... [t]o gain entry into the United States," in violation of the Fraudulent Entry Statute, and that he also violated the No Entry Document Statute because he was "an immigrant not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Immigration and Nationality Act." (Second Mot. Dismiss, Ex. 1 at 10, ECF No. 28–1.)

The next day, on November 21, 2014, the United States Attorney's Office in the Western District of Texas instituted a criminal prosecution of Villarreal for his attempted reentry. On December 17, 2014, a grand jury returned a two-count indictment charging Villarreal with Illegal Reentry, in violation of 8 U.S.C. § 1326(a),⁶ and Improper Use of Another's Passport, in violation of 18 U.S.C. § 1544. Villarreal pleaded guilty to both counts and was sentenced to fifteen months' imprisonment. On December 23, 2016, after he had served his sentence, immigration officials physically removed Villarreal from the country and returned him to Mexico.

On August 6, 2017, Villarreal was again found in the United States when Chesterfield County police officers arrested him for "Obstruct Justice: Without Force," "DWI: Previous Felon," and "Driving While Suspended." The next day, officials in the Chesterfield County Jail notified Richmond immigration authorities that Villarreal was in their custody. On September 20, 2017, a grand jury in the Eastern District of Virginia returned the instant one-count Indictment, again charging Villarreal with a violation of 8 U.S.C. § 1326(a), the Criminal Illegal Reentry Statute.⁷

On January 5, 2018, Villarreal filed his first motion to dismiss (the "First Motion to Dismiss"). In the First Motion to Dismiss, Villarreal sought to collaterally attack both the September 2, 2014 Order of Removal and the November 20, 2014 Order of Removal, arguing that he was deprived of due process in both of those deportation proceedings. On February 15, 2018, the Court heard argument on the First Motion to Dismiss. Because the parties' briefing on the First Motion to Dismiss largely argued the merits as to success under 8 U.S.C. § 1326(d) (the "Collateral Attack Subsection"),⁸ the Court, identifying a threshold issue which neither party had squarely addressed, asked the parties to address the relevance of 8 U.S.C. § 1225,⁹ (the "Jurisdiction–Stripping Statute"), to Villarreal's First Motion to Dismiss. It was not until questioning by the Court that it became apparent that Villarreal intended to challenge the constitutionality of that provision. Holding that Villarreal had "not adequately raised [the] constitutional challenge ... in a way that the Court can decide," the Court denied the First Motion to Dismiss without prejudice. (Feb. 23, 2018 Mem. O. 7, ECF No. 27.) The Court allowed Villarreal to file a second motion to dismiss, which he timely did.

Villarreal argues in the Second Motion to Dismiss that the Court must dismiss the Indictment because neither the September 2, 2014 Order of Removal nor the November 20, 2014 Order of Removal constitute valid orders of removal on which a prosecution for Illegal Reentry in violation of 8 U.S.C. § 1326(a) may be premised.

Subsequent briefing and argument from both parties established that the November 20, 2014 Order of Removal is the only removal challenged at bar.¹⁰ In the Second Motion to Dismiss, Villarreal finally presents his constitutional challenge. Villarreal argues that either the Jurisdiction–Stripping Statute is unconstitutional when applied in context of a prosecution under the Criminal Illegal Reentry Statute, or Congress intended that prosecutions under the Criminal Illegal Reentry Statute could not be premised on expedited removals. The United States has responded, and Villarreal has replied. The constitutional question is therefore squarely before the Court.

The Court finds that 8 U.S.C. § 1225(b)(1)(D), the Jurisdiction–Stripping Statute, is unconstitutional to the extent it prohibits, in a subsequent prosecution under 8 U.S.C. § 1326(a), the Criminal Illegal Reentry Statute, "some meaningful review" of an alien's claim that the underlying deportation proceeding, which constitutes an element of the criminal charge, was "fundamentally unfair." United States v. Mendoza–Lopez , 481 U.S. 828, 838–39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). However, because Villarreal cannot establish that the deportation proceeding underlying the November 20, 2014 Order of Removal was fundamentally unfair, the Court will deny Villarreal's Second Motion to Dismiss.

II. The Jurisdiction–Stripping Statute is Unconstitutional to the Extent it Prohibits Some Meaningful Review of a Deportation Proceeding on Which a Subsequent Criminal Prosecution is Based

Mendoza–Lopez requires that, "where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding." 481 U.S. at 837–38, 107 S.Ct. 2148. Although the Collateral Attack Subsection provides for judicial review of some orders of removal in the context of prosecutions based on the Criminal Illegal Reentry Statute, the Jurisdiction–Stripping Statute, by its plain language, prohibits judicial review of the validity of an expedited removal, such as the November 20, 2014 Order of Removal, in the context of a prosecution under the Criminal Illegal Reentry Statute. 8 U.S.C. § 1225(b)(1)(D). The Jurisdiction–Stripping Statute also expressly provides that the Criminal Illegal Reentry Statute applies to aliens who were removed pursuant to the Expedited Removal Statute. But when an alien is prosecuted under the Criminal Illegal Reentry Statute after being removed pursuant to an expedited removal order, that removal order constitutes an element of the subsequent criminal charge, which—through the combined operation of the Expedited Removal Statute and the Jurisdiction–Stripping Statute—cannot be reviewed.

The Court therefore must conclude that the Jurisdiction–Stripping Statute, 8 U.S.C. § 1225(b)(1)(D), is unconstitutional to the extent it prohibits "some meaningful review" in a prosecution under the Criminal Illegal Reentry Statute of an alien's claim that the underlying deportation proceeding was "fundamentally unfair." Mendoza–Lopez , 481 U.S. at 838–39, 107 S.Ct. 2148.

A. Mendoza–Lopez Requires Some Meaningful Review When a Subsequent Criminal Prosecution is Based on an Earlier Deportation Proceeding

In Mendoza–Lopez , two aliens were arrested in Nebraska, subjected to group deportation proceedings, and ordered deported to Mexico. 481 U.S. at 830, 107 S.Ct. 2148. Two months later, after being found again in...