United States District Court, W.D. Texas, Austin Division
PITMAN, UNITED STATES DISTRICT JUDGE
above-entitled case was opened on January 27, 2017, upon the
filing of a complaint naming Defendant Ulises Porcayo-Jaimes
as an alien who had reentered the United States after a prior
removal. Defendant was then indicted on February 2, 2017, and
charged with violating 8 U.S.C. § 1326, which governs
the reentry of previously removed aliens.
filed a motion to dismiss the indictment on May 2, 2017.
(Mot., Dkt. 21). The Government responded on May 11, 2017.
(Resp., Dkt. 22). After considering the parties'
submissions, the record in this case, and the applicable law,
the court concludes that Defendant's motion should be
DENIED. The court sets out the reasons for its decision
who was born in 1991, came to the United States as a child.
He has never had legal status, and was permitted to
voluntarily return to Mexico in November 2007. At some point he
reentered the United States, and in November 2008 was
arrested for and subsequently pled guilty to burglary of a
habitation in violation of Texas Penal Code § 30.02(a).
He was then sentenced to three years confinement under the
supervision of the Texas Department of Criminal Justice.
year later, in late 2009, the Department of Homeland Security
(“DHS”) served Defendant with a Notice of Intent
to Issue a Final Administrative Removal Order (“the
Notice”). The Notice stated that burglary of a
habitation qualified as an “aggravated felony”
under Immigration and Nationality Act (“INA”)
§ 101(a)(43)(G), 8 U.S.C. § 1101(a)(43)(G),
rendering Defendant amendable to expedited removal
proceedings. Defendant indicated that he did not wish to
contest the removal, and DHS issued a Final Administrative
Removal Order (“FARO”) on November 12, 2009.
Defendant was thereafter removed from the United States on
September 12, 2011, upon completion of his three year
unknown time and place, Defendant again reentered the United
States. He was arrested in April 2016 in connection with and
later pled guilty to assault family violence in violation of
Texas Penal Code § 22.01(a)(1). Those proceedings
attracted the attention of Immigration and Customs
Enforcement and led to the current indictment charging
Defendant with reentering the United States after a prior
removal. Defendant has now moved to dismiss the indictment on
the ground that the 2009 FARO was invalid and must be
Rule of Criminal Procedure 12(b) allows the court to hear at
the pretrial stage any defense that may be determined without
a trial on the merits. A court should not dismiss an
indictment if it alleges every element of the offense.
See United States v. Guzman-Ocampo, 236 F.3d 233,
236 (5th Cir. 2000). However, indictments for illegal reentry
under 8 U.S.C. § 1326 are subject to dismissal where the
underlying removal proceeding, which serves as an element of
the criminal offense, was not conducted in conformity with
due process. For example, as the Supreme Court explained in
United States v. Mendoza-Lopez, “where the
defects in an administrative proceeding foreclose judicial
review of that proceeding, an alternative means of obtaining
judicial review must be made available before the
administrative order may be used to establish conclusively an
element of a criminal offense.” 481 U.S. 828, 838
Fifth Circuit has interpreted Mendoza-Lopez to
“require an alien challenging a prior removal to
establish that (1) the removal hearing was fundamentally
unfair; (2) the hearing effectively eliminated the right of
the alien to challenge the hearing by means of judicial
review of the order; and (3) the procedural deficiencies
caused the alien actual prejudice.” United States
v. Lopez-Ortiz, 313 F.3d 225, 229 (5th Cir. 2002).
“[T]his interpretation of Mendoza-Lopez
effectively was codified” in 8 U.S.C. § 1326(d),
see id., which additionally requires that “the
alien [have] exhausted any administrative remedies that may
have been available to seek relief against the order”
sought to be collaterally attacked. See 8 U.S.C.
§ 1326(d); United States v.
Hernandez-Ramirez, 2016 WL 7156772, at *1 (5th Cir. Dec.
7, 2016) (in addition to the three requirements set out in
Lopez-Ortiz, a defendant “must also exhaust
the administrative remedies set out in 8 U.S.C. §
1326(d)(1)”). If a defendant is successful in
challenging a prior removal order, it cannot be used to
establish the element of prior removal for purposes of an 8
U.S.C. § 1326 prosecution. See Lopez-Ortiz, 313
F.3d at 229.
removal order that Defendant challenges here is the 2009
FARO, which was issued pursuant to the expedited removal
proceedings provided for under INA § 238(b), U.S.C.
§ 1228(b). “The prerequisites for expedited
removal are that the person be (1) an alien, (2) who has
committed a crime covered in 8 U.S.C. §
1227(a)(2)(A)(iii) (aggravated felony), and (3) has not been
admitted, even conditionally, as a lawful permanent
resident.” Valdiviez-Hernandez v. Holder, 739
F.3d 184, 188 (5th Cir. 2013). “Thus, INA § 238(b)
applies to aliens who are not lawful permanent residents and
allows DHS to determine the removability of such aliens under
. . . 8 U.S.C. § 1227(a)(2)(A)(iii), and issue a removal
order without referring the case to an [immigration judge
(“IJ”)] (unless the alien requests referral to an
IJ).” Umude-Louis v. Holder, 368 F. App'x
544, 546 (5th Cir. 2010). “An alien who is subject to a
[FARO] issued under INA § 238(b), 8 U.S.C. §
1228(b) is ineligible for any relief from removal that is
discretionary with the Attorney General, ”
id.; 8 U.S.C. § 1228(b), such as voluntary
departure, see 8 U.S.C. § 1229c (“The
Attorney General may permit an alien voluntarily to depart
the United States at the alien's own expense . . . in
lieu of being subject to [normal removal proceedings] . . .
if the alien is not deportable [on the basis of having
committed an aggravated felony].”)
argues that the 2009 FARO was invalid because the immigration
official in charge erroneously identified burglary of a
habitation as an “aggravated felony” under 8
U.S.C. § 1101(a)(43)(G), thereby improperly initiating
expedited removal proceedings. But for this error, Defendant
contends, he would not have signed away his right to contest
the removal, would have appeared before an IJ, and would have
had a reasonably likely chance of obtaining a discretionary
order of voluntary departure. He argues that these
circumstances demonstrate all the criteria necessary for a
successful collateral attack on the 2009 FARO.
Government responds that the immigration officer did not err
in labeling Defendant's offense an aggravated felony. It
further argues that even if the immigration officer did err,
Defendant cannot prevail because (1) a failure to notify him
of his eligibility for discretionary relief does not render
his prior removal invalid; and (2) in any event, Defendant
would not have been reasonably likely to obtain an order of
reasons given below, the court agrees with the Government
that DHS did not misclassify Defendant's offense as an
aggravated felony. Because Defendant's argument is based
entirely on the purported misclassification and the
consequences thereof, the court's contrary finding is
dispositive of Defendant's motion.
Whether Defendant's Conviction was for an