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United States v. Tena-Arana

United States District Court, W.D. Texas, El Paso Division

July 19, 2019

UNITED STATES OF AMERICA
v.
DAGOBERTO TENA-ARANA

          MEMORANDUM OPINION AND ORDER

          DAVID BRIONES SENIOR UNITED STATES DISTRICT JUDGE

         On this day, the Court considered Defendant Dagoberto Tena-Arana's ("Mr. Tena-Arana") "Motion to Dismiss Indictment and Superseding Indictment" ("Motion"), filed in the above-captioned case on June 21, 2019. On June 28, 2019, the United States of America ("the Government") filed its "Response in Opposition to Defendant's Motion to Dismiss Indictment and Superseding Indictment" ("Response"). On July 3, 2019, Mr. Tena-Arana filed his "Reply to Government's Response in Opposition to Defendant's Motion to Dismiss Indictment and Superseding Indictment" ("Reply"). After due consideration, the Court is of the opinion that Mr. Tena-Arana's Motion should be denied.

         BACKGROUND

         On May 22, 2019, a Grand Jury sitting in the Western District of Texas returned a single count Indictment ("Indictment"), which charges Mr. Tena-Arana with an alleged illegal reentry into the United States in violation of 8 U.S.C. § 1326(a). Indictment 1, ECF No. 10. Specifically, the Indictment alleges that on or about April 27, 2019, Mr. Tena-Arana, an undocumented immigrant who had previously been deported from the United States on or about August 23, 2014, was found in the United States again. Id.

         On June 12, 2019, a Grand Jury sitting in the Western District of Texas returned a single count Superceding Indictment, which charges Mr. Tena-Arana with an alleged illegal reentry into the United States in violation of 8 U.S.C. § 1326(a). Superseding Indictment 1, ECF No. 19. Specifically, the Superseding Indictment alleges that on or about April 27, 2019, Mr. Tena-Arana, an undocumented immigrant who had previously been deported from the United States on or about November 10, 2009, attempted to enter, entered, and was found in the United States again. Id.

         Mr. Tena-Arana is a citizen of Mexico, who was formerly a permanent resident alien. Resp. 1, ECF No. 27. On June 28, 1996, he applied for entry into the United States while in possession of 1.5 pounds of marijuana. See Resp. Ex. A, ECF No. 27. On June 28, 1996, immigration officials issued Mr. Tena-Arana a Notice to Applicant for Admission Detained for Hearing before Immigration Judge, Forms 1-110 and 1-122. Resp. Ex. A, ECF No. 27. Prior to 1997, Form 1-122 was given to an applicant who was denied entry and served as a notice to the applicant that he had been denied admission and that he had been or would be scheduled for a hearing before an immigration judge. See 8 C.F.R. § 1240.30; Hernandez v. Cremer, 913 F.2d 230, 232 (5th Cir. 1990).

         Mr. Tena-Arana's first immigration hearing took place on August 19, 1996. See Resp. Ex. C, ECF No. 27. The immigration judge ordered him excluded and deported from the United States. Id. Mr. Tena-Arana waived his right to appeal this order. See Id. He was removed to Mexico on August 19, 1996. See Resp. Ex. D, ECF No. 27.

         Subsequently, on or about March 1, 1998, the Defendant re-entered the United States. See Resp. Ex. E, ECF No. 27. On April 12, 2004, a Notice of Intent/Decision to Reinstate Prior Order ("Form 1-871") issued though it was not certified or signed. Id. The Government asserts that it was not served on Mr. Tena-Arana because he filed an application for voluntary departure and then appeared before an immigration judge. Resp. 2, ECF No. 27. On September 29, 2004, the immigration court served Mr. Tena-Arana with a Notice of Hearing that contained the date, time, and place of the hearing. Resp. 2 Ex. F, ECF No. 27. On October 4, 2004, the hearing took place where Mr. Tena-Arana's application for voluntary departure was denied and he was ordered removed. See Mot. Ex. C, ECF No. 25; Resp. Ex. G, ECF No. 27. On October 12, 2004, he was removed back to Mexico. See Resp. Ex. H, ECF No. 27.

         On or about January 10, 2005, Mr. Tena-Arana re-entered the United States. See Resp. Ex. I, ECF No. 27. On March 11, 2005, the Immigration and Naturalization Services issued a Notice to Appear, Bond, Custody Processing Sheet to Mr. Tena-Arana, but it was not filed. See Resp. Ex. J, ECF No. 27. The Notice to Appear has a line drawn across the document with an annotation that reads: "Not Filed/Admin Removal done Instead." Id. On March 24, 2005, he was administratively removed back to Mexico. See Resp. Ex. K, ECF No. 27.

         On or about January 9, 2009, Mr. Tena-Arana re-entered the United States. On January 23, 2009, he was removed back to Mexico. See Resp. Ex. L, ECF No. 27.

         On or about March 5, 2009, Mr. Tena-Arana re-entered the United States. On November 10, 2009, he was removed back to Mexico. See Resp. Ex. M, ECF No. 27.

         On or about June 23, 2013, Mr. Tena-Arana re-entered the United States. On August 23, 2014, he was removed back to Mexico. See Resp. Ex. N, ECF No. 27.

         Here Mr. Tena-Arana again illegally reentered the United States on or about April 27, 2019, and was charged by indictment in the Western District of Texas with illegal reentry in violation of 8 U.S.C. § 1326. Indictment 1, ECF No. 10; Superceding Indictment 1, ECF No. 19. Mr. ...


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