United States District Court, E.D. Texas, Sherman Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE
before the Court is Defendant's Motion to Dismiss the
Indictment (the “Motion”) (Dkt. 32). The District
Court referred the matter to this Court for a report and
recommendation. The Government filed two responses to the
Motion (Dkts. 33, 41). On October 4, 2019, the Court heard
oral argument on the Motion (the “Hearing)..
November 27, 2004, Defendant Paloma Viridiana Roman-Montes, a
Mexican citizen, attempted to enter the United States by
identifying as a United States citizen. See Dkt.
33-1 at 2. Defendant is not a citizen of the United States
and knew this fact when she presented herself as a United
States citizen. See id. Hence, Defendant was removed
from the United States on December 15, 2004. Dkt. 32 at 2.
The removal order was reinstated on November 7, 2010. Dkt.
April 3, 2019, immigration authorities encountered Defendant
in Allen, Texas. Id. The Indictment, which charges a
violation of 8 U.S.C. § 1326(a)-(b) (Reentry of a
Deported Alien), was filed against Defendant on April 10,
2019. See Dkt. 1.
Motion challenges the Court's jurisdiction due to an
alleged shortcoming in 2004 removal's validity. Defendant
contends she was not served with a Notice to Appear
(“NTA”) stating the time and date of a hearing,
and therefore, the Immigration Judge did not have
jurisdiction to conduct removal proceedings. See
Dkt. 32 at 2. Further, Defendant argues subsequent
reinstatement of the 2004 removal order was also invalid, and
the Indictment should be dismissed pursuant to 8 U.S.C.
§ 1326(d). See Dkt. 32 at 2.
defendant charged with illegal reentry in violation of 8
U.S.C. § 1326 has a due process right to challenge the
removal order upon which the charge is predicated. See
United States v. Mendoza-Lopez, 481 U.S. 828, 837-38
(1987). To successfully establish a due process challenge,
the defendant must establish: 1) the prior hearing was
“fundamentally unfair”; 2) the hearing
effectively eliminated the defendant's right to challenge
the hearing by means of judicial review of the order; and 3)
the procedural deficiencies caused the defendant actual
prejudice. United States v. Mendoza-Mata, 322 F.3d
829, 832 (5th Cir. 2003); see also § 1326(d).
“[R]emoval proceedings commence when the INS files the
appropriate charging document with the immigration
court.” DeLeon-Holguin v. Ashcroft, 253 F.3d
811, 815 (5th Cir. 2001).
Government argues the charging document need not be an NTA.
See Dkt. 33 at 4. “[W]here proceedings
‘commence upon personal service of the Notice of Intent
upon the alien'[, ] the ‘Notice of Intent shall
constitute the charging document.'” United
States v. Gonzalez-Ferretiz, No. 3:18-CR-117, 2019 WL
943388, at *6 (E.D. Va. Feb. 26, 2019) (citing 8 CFR §
238.1(b)(2)(i); see also 8 C.F.R. § 1003.14(a);
United States v. Lopez-Collazo, 824 F.3d 453, 456-58
(4th Cir. 2016) (describing the expedited removal
U.S.C. § 1182(a)(6)(C)(ii) provides that “[a]ny
alien who falsely represents, or has falsely represented,
himself or herself to be a citizen of the United States for
any purpose or benefit under this chapter (including section
1324a of this title) or any other Federal or State law is
inadmissible.” 8 U.S.C. § 1225 (b)(1)(A)(i) states
that “[i]f an immigration officer determines that an
alien . . . who is arriving in the United States . . . is
inadmissible under section 1182(a)(6)(C) . . . 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 under
section 1158 of this title or a fear of persecution.”
(emphasis added). In 2004, Defendant falsely represented she
was a citizen, and thus, was ineligible to receive a visa and
be admitted to the United States. Defendant was removed
pursuant to the expedited removal process described in 8
C.F.R. § 235.3(b)(1). See Dkt. 33 at 3.
Government presented evidence that the procedures outlined in
8 C.F.R. § 235.3(b)(1) were followed, stating:
The immigration officer created a record of the facts of the
case and statements made by her utilizing Form I876AB, Record
of Sworn Statement in Proceedings. [Dkt. 33-1]. The officer
read all the statements in Form I-876AB and recorded all of
Roman-Montes's responses. The officer advised
Roman-Montes of the charges against her by providing Form
I-860 and allowed her to address the charges in the sworn
statement. [Dkt. 33-2]. Roman-Montes was then removed. [Dkt.
Dkt. 33 at 3. The evidence indicates Defendant admitted she
was not a United States citizen and she had no fear or
concern about being returned to her home country of Mexico.
See Dkt. 33-1 at 2, 4. Defendant did not contest the
Government's presentation of the facts concerning
Defendant's removal. Additionally, the Court finds the
documentation presents a credible account of Defendant's
removal pursuant to 8 C.F.R. § 235.3(b)(1).
as otherwise provided, an alien is “not entitled to a
hearing before an immigration judge in proceedings conducted
pursuant to section 240 of the Act, or to an appeal of the
expedited removal order to the Board of Immigration
Appeals.” 8 C.F.R. § 235.3(b)(2)(ii). Defendant
was not, therefore, entitled to a hearing before an
immigration judge and, as such, there was no hearing for
which issuance of an NTA was required.
Hearing, Defendant conceded his primary argument that an NTA
was required, but raised an additional argument that
Defendant was unable to understand the questions and document
she signed because she is fluent in Spanish and does not
understand English. The particular document Defendant
contests is the Record of Sworn Statement in Proceedings
under Section 235(b)(1) of the Act (the
“Statement”) signed by Defendant in 2004. Dkt.
33-1. While the Statement indicates that an interpreter was
not used, it also denote that the immigration inspector took
the Statement in the Spanish language. See Id. at 1.
The Statement includes a provision which reads:
I have read (or have had read to me) this statement
. . . I state that my answers are true and correct to the
best of my knowledge and that this statement is a full, true
and correct record of my interrogation on the date indicated
by the above named officer of the Immigration and