United States v. Terrazas Siles

• Decision Date: 05 July 2019
• Docket Number: 1:19-cr-127 (LMB)
• Citation: 397 F.Supp.3d 812
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Lourdes TERRAZAS SILES, a/k/a Lourdes Terrazas-Silas, Defendant.

397 F.Supp.3d 812

UNITED STATES of America

v.Lourdes TERRAZAS SILES, a/k/a Lourdes Terrazas-Silas, Defendant.

1:19-cr-127 (LMB)

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

Signed July 5, 2019

Jessica Ashley Kraft, US Attorney's Office, Alexandria, VA, for Plaintiff.

Cadence Mertz, Office of the Federal Public Defender, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Before the Court is a motion to dismiss the one-count indictment charging Lourdes Terrazas Siles ("Terrazas Siles" or "defendant")¹ with unlawful reentry after removal in violation of 8 U.S.C. § 1326(a). The parties have fully briefed the motion, and the Court has heard oral argument. For the reasons stated in open court and as elaborated below, defendant's motion will be denied.

I.

Terrazas Siles is a native of Bolivia. In late 1999, when she was 20 years old, she set out to enter the United States by paying a "coyote"² to help her obtain a false passport and get into the United States. On December 5, 1999, she followed the coyote across a pedestrian bridge toward the pedestrian entrance of the U.S. border in San Ysidro, a district in San Diego, California. The coyote passed through the pedestrian turnstile and disappeared. Before Terrazas Siles could do the same, she was intercepted by an immigration officer. The officer determined that the passport defendant had attempted to present was fake and directed her to "secondary inspection" for "further investigation." Def.'s Mot. Ex. B [Dkt. No. 22-1].

Under the applicable provisions of the Immigration and Nationality Act ("INA"), an alien who arrives at the U.S. border is deemed to be an applicant for admission to the United States. See 8 U.S.C. § 1225(a)(1). Defendant's application was processed by immigration officer R. Sorges II ("Sorges"), who conducted the proceedings in Spanish and recorded defendant's responses on an I-867A form. See Gov't's Opp'n Ex. 2 [Dkt. No. 23-1]. Before defendant was asked any questions, she was advised that Sorges was an officer of the U.S. Immigration and Naturalization Service; that she "d[id] not appear to be admissible or have the required legal papers authorizing ... admission to the United States"; that, as a result, she could be "denied admission and immediately returned to [her] home country without a hearing"; that if she were removed, she would be "barred from reentry for a period of 5 years or longer"; and that providing false testimony would subject her to civil or criminal penalties or further immigration consequences. Id. at 1. Defendant was further advised that "U.S. law provides protection to certain persons who face persecution, harm or torture upon return to their home country" and that if she had any such concerns, she should communicate them to Sorges, who would arrange for a confidential interview with an asylum officer. Id. Defendant told Sorges that she understood those advisements and was willing to answer questions. Id. at 1-2. She explained that she had paid the coyote $1500 for the false passport and for help getting her into the United States. Id. at 2. She claimed that she had intended to visit her uncle in Virginia for 10 days and then return to Bolivia, upon which time she would pay the coyote an additional $4500. Id. at 2-3. Defendant admitted knowing it was "illegal to present a document not lawfully issued to [her]" at the border. Id. at 2. She explained that she had no fear of returning to Bolivia and, when asked if she had anything further to add, stated that she "just want[ed] to find the man who left"—presumably the coyote who had abandoned her. Id. at 3. Sorges certified that the I-867A form was read to defendant in Spanish, and defendant initialed each page to reflect that she had reviewed its contents.

Based on defendant's conduct and statements, immigration authorities determined that she was inadmissible under "sections 212(a)(6)(c)(i) and 212(a)(7)(A)(i)(1) of the INA." Def.'s Mot. Ex. B [Dkt. No. 22-1]; see 8 U.S.C. § 1182(a)(6)(C)(i) ("Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible."); id. § 1182(a)(7)(A) ("[A]ny immigrant at the time of application for admission ... who is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by this chapter ... is inadmissible."). The authorities ordered defendant removed from the United States under the INA's expedited removal provisions because she had presented false documentation, did not have any valid entry documents, and had not expressed any desire to apply for asylum or that she feared persecution upon return to Bolivia. See 8 U.S.C. § 1225(b)(1)(A)(i) ("If an immigration officer determines that an alien ... who is arriving in the United States ... is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum ... or a fear of persecution."). Defendant was held in immigration custody for approximately six weeks before being deported on January 27, 2000.

At some unknown time after being removed, Terrazas Siles returned to the United States, slipped across the border undetected, and found her way to Virginia. There is no evidence in the record that she had any contact with immigration authorities for nearly 16 years. But she was unable to avoid encounters with local law enforcement. She was arrested and charged with domestic violence in Arlington, Virginia in 2001 (a charge that was ultimately nolle prossed); with shoplifting in Alexandria, Virginia in 2003; and with failure to appear in Prince William County, Virginia in 2004. In August 2016, defendant was arrested and charged with felony aggravated sexual battery by a parent, stepparent, grandparent, or stepgrandparent of a victim at least 13 years old but less than 18 years old. Authorities at the Prince William County Adult Detention Center, where defendant was held on the charge, contacted U.S. Immigration and Customs Enforcement ("ICE") officials about her immigration status. In June 2017, defendant was convicted in state court and sentenced to 20 years' incarceration with all but three years suspended. After she was released from state custody in early April 2019, she was arrested by ICE officials and turned over to the U.S. Marshals Service. On April 18, 2019, a federal grand jury in the Eastern District of Virginia returned a single-count indictment charging defendant with unlawful reentry after removal in violation of 8 U.S.C. § 1326, which makes it a felony punishable by up to two years' imprisonment for any noncitizen³ who was previously denied admission to or removed from the United States to "enter[ ], attempt[ ] to enter, or [be] at any time found in ... the United States" without prior consent of the Attorney General or his designee. 8 U.S.C. § 1326(a).

Defendant has moved to dismiss the indictment on three grounds: that this prosecution is barred by the statute of limitations; that her expedited removal was fundamentally unfair and cannot serve as the basis for the unlawful reentry charge; and that she never "entered" the United States during her 1999 encounter with immigration authorities and therefore cannot be said to have "reentered" the United States at a later date. None of these arguments is persuasive.

II.

The parties agree that the applicable statute of limitations for a § 1326 prosecution is five years. United States v. Uribe-Rios, 558 F.3d 347, 351 & n.5 (4th Cir. 2009) (citing 18 U.S.C. § 3282(a) ). They likewise agree that the statute begins to run when the defendant is "found in ... the United States." 8 U.S.C. § 1326(a)(2). But they disagree over which party bears the burden of proof as to the statute of limitations, what standard of governmental awareness of a defendant's location inside the United States triggers the limitations period, and how those legal principles apply to this case. Even assuming that the government bears the burden of proof⁴ and that constructive knowledge is enough to trigger the limitations period,⁵ the record clearly demonstrates that this prosecution is timely.

The government argues that Terrazas Siles was first "found in" the United States following her expedited removal when she was arrested and charged with aggravated sexual battery in August 2016. Defendant disagrees, arguing that the government was aware of her presence much earlier. A few of the dates she proposes can be rejected at the outset. First, she mentions, "[a]s an aside," that she had "interaction[s] with local law enforcement" in Virginia in 2001, 2003, and 2004. Def.'s Mot. 4 n.2. As the government correctly points out, the Fourth Circuit has rejected the notion that a run-in with local law enforcement, without more, puts the federal government on notice about a noncitizen's presence in the country. See Uribe-Rios, 558 F.3d at 356 ("[F]undamental principles of dual sovereignty do not allow us to impute the knowledge of state officials to federal officials.").

Defendant also observes that her electronic immigration file features "activity" in November 2004, July and September 2007, and February and May 2008, suggesting that the government may have been aware of her presence in the country as of those dates. The government responds that all of those entries merely reflect clerical "updates to immigration databases" rather than genuine encounters with federal officials. See Gov't's Opp'n 3. Defendant appears to accept this explanation, see Def.'s Suppl. 4 ("taking as true the government's contentions that the references to 2004, 2007, and 2008 reflect data migration or...