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United States v. Porcayo-Jaimes

United States District Court, W.D. Texas, Austin Division

May 26, 2017

UNITED STATES OF AMERICA
v.
ULISES PORCAYO-JAIMES

          ORDER

          ROBERT PITMAN, UNITED STATES DISTRICT JUDGE

         The 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.

         Defendant 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 below.

         I. BACKGROUND

         Defendant, 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.[1] 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.

         One 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 sentence.

         At an 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 suppressed.

         II. LEGAL STANDARD

         Federal 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 (1987).

         The 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);[2] 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.

         III. DISCUSSION

         The 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].”)

         Defendant 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.

         The 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 voluntary departure.

         For the 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.

         a. Whether Defendant's Conviction was for an ...


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