United States v. Pineda-Garcia
United States v. Pineda-Garcia
Opinion of the Court
This matter comes before the court on Defendant's Motion to Dismiss Indictment ("Motion"), filed on March 4, 2019. ECF No. 14. Defendant's Motion raises two independent grounds for dismissal. Id. at 1. First, Defendant asserts that the government failed to serve him with a Notice of Hearing to give him actual notice of his rescheduled removal hearing, which violated his right to due process and prejudiced his ability to appear and defend against his removal. Id. Second, Defendant asserts that the immigration court did not have jurisdiction to issue the Removal Order against him due to a defect in the Notice to Appear. Id.
The United States filed a Response to Defendant's Motion ("Response") on March 13, 2019. ECF No. 15. Defendant filed a Reply to Government's Response ("Reply") on March 19, 2019, ECF No. 16, and a Notice of Request for Hearing ("Request for Hearing") on March 20, 2019, ECF No. 17. The United States filed a Response Opposing Request for an Immediate Hearing, requesting the court not hold an evidentiary hearing until receipt of the complete record of proceedings before the administrative immigration court ("record of immigration proceedings"). ECF No. 18. On March 22, 2019, the court issued an Order granting Defendant's Request for Hearing, to be held after receipt *696of the record of immigration proceedings. ECF No. 19. On March 29, 2019, the United States filed a Supplement to Response. ECF No. 20. The Supplement to Response informed the court that on March 28, 2019, the United States received the record of immigration proceedings. Id. at 1. Defendant's Motion was set for a hearing on April 30, 2019.
On April 18, 2019, the United States filed a Memorandum of Law Regarding Attorney-Client Privilege and Communication of Immigration Hearing Notification ("Memorandum of Law"). ECF No. 23. On April 22, 2019, Defendant filed a Notice ("Defendant's Notice"), informing the court that he no longer proceeds on his "actual-notice claim" because the record of immigration proceedings includes a Notice of Hearing for the September 11, 2008 removal hearing. ECF No. 24 at 1 (citing ECF No. 20-6). Defendant proceeds only on his jurisdictional claim. Id. Defendant's Notice also indicated that he believed an evidentiary hearing was no longer necessary. Id. The United States filed a Response to Defendant's Notice, requesting the court proceed with the hearing to fully develop the record. ECF No. 25.
On April 30, 2019, the court held the hearing. ECF No. 26. At the hearing, the United States presented evidence, Defendant confirmed his withdrawal of his "actual-notice claim,"
I.
The following information is taken from the numerous exhibits filed in this case, which include documents from Defendant's immigration and state court records. The parties do not dispute the authenticity and veracity of these documents and the information contained therein. See Mot. at 1-4; Resp. at 2-3.
Defendant is a citizen of Mexico who entered the United States without authorization in April of 2003. Notice Appear at 1, ECF No. 15-5. On August 9, 2007, after immigration authorities took him into custody, Defendant was personally served with a Notice to Appear. Id. at 2. The Notice to Appear alleged that Defendant was not a United States citizen and had entered the United States without being inspected by immigration authorities. Id. at 1. The Notice to Appear ordered Defendant to appear for a hearing before an immigration judge on March 27, 2008, at 9:00 A.M. Id. The line for the address of the immigration court on the Notice to Appear was left blank. Id.
In the interim, on August 23, 2007, Defendant was released on a personal recognizance bond, which was signed by Defendant, and which set forth the scheduled immigration proceeding, indicating not only the date and time of the proceeding, but also the location of the courthouse. Order Release Recognizance, ECF No. 15-6. Defendant subsequently retained counsel to represent him in the immigration proceedings, and the immigration attorney filed a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court on March 13, 2008. ECF No. 14-3. Defendant's immigration attorney requested a continuance of the March 27, 2008 hearing. Mot. Continue, ECF No. 15-7. The proceedings were continued to *697September 11, 2008, and a new Notice of Hearing stating the time and place of the hearing was sent to Defendant's immigration attorney. Notice Hr'g, ECF No. 20-6.
On August 15, 2008, Defendant's immigration attorney filed a Motion to Withdraw as Counsel of Record ("Motion to Withdraw"). ECF No. 20-4. In the Motion to Withdraw, Defendant's immigration attorney stated that he had "informed [Defendant] of this hearing in writing and in person and ha[d] warned him of the consequences of failing to appear." Id. at 3. The Motion to Withdraw was granted by an Order of August 20, 2008. ECF No. 20-5.
II.
At the April 30, 2019 hearing, the court heard testimony from Defendant's immigration attorney, Mr. Hugo Valverde. Mr. Valverde testified that the Motion to Withdraw reflected that he had informed Defendant of the September 11, 2008 hearing in writing and in person and had warned Defendant of the consequences of failing to appear. The United States requested Mr. Valverde produce the letter that Mr. Valverde had sent to Defendant informing him of the September 11, 2008 hearing.
Mr. Valverde asserted that attorney-client privilege applied to the letter. The court ordered Mr. Valverde to produce the letter for in camera review. Although almost all the letter is in Spanish, a portion of the letter clearly states the date, time, and location of the September 11, 2008 hearing. Gov't's Ex. 2. The United States and Defendant agreed that "[c]ommunications between attorney and client to inform the client of a court appearance are not privileged communications." United States v. Savage, No. 86-5618,
Defendant objected to admission of the entire letter on the basis that the remaining portion of the letter may contain privileged information. Without a certified English translation of the remaining portion of the letter, which is in Spanish, the court could not rule on Mr. Valverde's assertion *698of privilege over that portion of the letter and Defendant's objection to its admission. Thus, the court redacted the remaining portion of the letter and admitted the redacted version of the letter as Government's Exhibit 2. Mr. Valverde and Ms. Carola Green, Defendant's Interpreter, then each read all but the redacted portion of the letter into the record in English, confirming that Mr. Valverde provided Defendant with written notice of the date, time, and location of the September 11, 2008 hearing.
Nevertheless, on September 11, 2008, Defendant failed to appear for his hearing, and the immigration judge ordered Defendant removed in absentia. Removal Order, ECF No. 20-2. Defendant was removed on July 30, 2010. R. Deportable/Inadmissible Alien at 2, ECF No. 15-9. Defendant subsequently re-entered the United States and was again removed on February 18, 2013, pursuant to the September 11, 2008 Removal Order.
On April 26, 2018, the Chesapeake, Virginia, Police Department arrested Defendant in connection with multiple hit and runs, and he was convicted on two felony counts in state court. State Sentencing Order, ECF No. 15-2 at 9. The single-count Indictment filed in this court charges Defendant with Unlawful Reentry after Deportation or Removal, in violation of
III.
In the instant Motion, Defendant contends that because the Notice to Appear failed to include the location of the removal proceeding, the immigration court lacked jurisdiction to order Defendant's removal in 2008. Mot. at 11. Defendant further contends that because the immigration court lacked jurisdiction to order his removal, the Removal Order is void, and the current indictment in this court should be dismissed because Defendant has not re-entered the United States following the entry of a valid Removal Order.
Defendant's Motion first asserts that the defect in the Notice to Appear and the immigration court's lack of jurisdiction satisfy the requirements of
A. Requirements of
As a threshold matter, the court will address whether Defendant has met the requirements of
may not challenge the validity of the deportation order ... unless the alien demonstrates that--
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly *699deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
Defendant's Motion asserts that the defect in the Notice to Appear and the immigration court's lack of jurisdiction satisfy the requirements of
"Courts are split on the question whether § 1326(d) prohibits an alien who cannot meet that provision's three statutory requirements from collaterally attacking a removal order on the ground that the immigration court lacked jurisdiction to issue the order." United States v. Romero-Caceres,
1. Requirements One and Two
Defendant has not shown that he has "exhausted any administrative remedies that may have been available to seek relief against the order."
Defendant also has not shown that "the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review."
Thus, Defendant is unable to meet the first two requirements of § 1326(d), because he has not shown that the omission of the hearing location on his first Notice to Appear prevented him from exhausting any administrative remedies or deprived him of the opportunity for judicial review.
2. Requirement Three
To satisfy the third requirement of § 1326(d), fundamental unfairness, "a defendant must show that (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." El Shami,
Specifically, Defendant has not shown that his due process rights were violated by a defect in his Notice to Appear because Defendant's removal proceedings complied with the requirements of due process. Defendant's Notice to Appear provided him with notice of the charges against him. Notice Appear at 1. Defendant received a Notice of Hearing for the September 11, 2008 removal hearing, and this Notice of Hearing included the date, time, and location of the hearing. Notice Hr'g at 1. Defendant had a hearing on September 11, 2008, and Defendant had a fair opportunity to be heard at that hearing. Removal Order at 1. Defendant's decision not to attend the September 11, 2008 hearing after receiving proper notice of it is not a deprivation of his due process rights.
Next, Defendant asserts that he suffered prejudice because in 2008 he "was eligible for voluntary departure, which would have allowed him to leave the United States within a certain time period without a removal order being entered." Mot. at 7-8. But, Defendant was not prejudiced by the omission of the immigration court's address on the Notice to Appear, because he later received a Notice of Hearing that included the date, time, and location for his September 11, 2008 removal hearing. Defendant's failure to appear at that hearing and fulfill the requirements to be granted a voluntary departure under 8 U.S.C. § 1229c(b)(1), not a defect in the Notice to Appear, is responsible for the Removal Order. Notice Hr'g at 1. Again, any prejudice Defendant may have suffered is of his own accord, not that of the removal proceedings in 2008.
Thus, Defendant is unable to meet the third requirement of § 1326(d). Because Defendant is unable to meet any of the three requirements of § 1326(d), he cannot the challenge the validity of the Removal Order.
B. Application of Pereira v. Sessions, --- U.S. ----,
Even assuming arguendo that Defendant does not need to satisfy the § 1326(d) requirements, the immigration court had jurisdiction to order Defendant's removal. "An immigration court is vested with jurisdiction *701over an immigration proceeding 'when a charging document is filed with the Immigration Court' by the government."
Defendant argues that the immigration court did not have jurisdiction to order his removal because the Notice to Appear failed to include the location of Defendant's removal proceeding. Mot. at 11. Defendant's argument that the Notice to Appear must specify the location of his removal hearing to vest the immigration court with jurisdiction improperly relies on the narrow holding of Pereira v. Sessions, --- U.S. ----,
The Court's reasoning in Pereira relied on the plain language of the stop-time statute, 8 U.S.C. § 1229b(d)(1)(A).
*702"); United States v. Perez-Arellano,
Moreover, to the extent Defendant's Notice to Appear was defective for not including the location of the removal hearing, that defect was cured and jurisdiction vested when Defendant received subsequent notice of the removal hearing.
Therefore, the immigration court had jurisdiction over Defendant's removal proceedings and the Removal Order is valid. In reaching this conclusion, the court joins with the District Courts in this Circuit, as well as the Second, Sixth, and Ninth Circuits, that have rejected similar jurisdictional attacks based on Pereira. See, e.g., Banegas Gomez v. Barr,
IV.
Defendant's Motion to Dismiss is DENIED . The Clerk is DIRECTED to forward a copy of this Opinion to the Federal Public Defender and the Assistant United States Attorney. The Federal Public Defender and the Assistant United States Attorney are DIRECTED to contact the Calendar Clerk to set a new trial date.
IT IS SO ORDERED.
For the record, the court notes its agreement that Defendant's "actual-notice claim" fails because Defendant received notice of the September 11, 2008 hearing. See Notice Hr'g, ECF No. 20-6; Gov't's Ex. 2; see also
Mr. Valverde testified that Defendant's physical client file had been destroyed after five years, pursuant to the law firm's document retention policy. Mr. Valverde also testified that the firm had retained some of Defendant's electronic files, including a Microsoft Word document containing the identical text of the letter that Mr. Valverde sent to Defendant. The letter produced, and admitted into evidence, at the April 30, 2019 hearing is a print out of the Word document. See Gov't's Ex. 2; infra text at 6-7.
In ruling on Mr. Valverde's assertion of privilege, the court relied on the long-standing legal principle that the attorney-client privilege may not be used "as both a shield and a sword." Bittaker v. Woodford,
At the April 30, 2019 hearing, Defendant's counsel relied heavily on Shogunle v. Holder,
A noncitizen who is subject to removal proceedings and has been physically present in the United States for a continuous period of ten (10) years "may be eligible for a form of discretionary relief known as cancellation of removal." Pereira,
Reference
- Full Case Name
- United States v. Felix PINEDA-GARCIA
- Status
- Published