Virginia Lawyers Weekly VA Lawyers Weekly
The defendant’s attack on a prior removal order failed because he waived his right to challenge that order, failed to show he suffered prejudice from the alleged defects in the proceedings and the order complied with the regulations.
Background
On May 22, 2007, Immigration and Customs Enforcement gave defendant a notice to appear, requiring defendant to appear before an immigration judge to respond to the allegation that defendant had overstayed his B-2 visa without authorization.
The May 2007 notice stated that the date and time of the hearing would be set later.
On June 7, 2007, ICE moved defendant from Virginia to Texas. On June 12, 2007, the immigration court sent a notice of hearing in removal proceedings to defendant in Texas. This June 2007 notice advised defendant of the date, time and location of the removal hearing.
At the scheduled and noticed hearing on June 15, 2007, an immigration judge ordered defendant removed from the United States. Defendant, who was present for the hearing and proceeded pro se, waived his appeal of the June 2007 removal order. ICE then removed defendant from the United States.
At some unknown time after this removal, defendant once again re-entered the United States illegally. Thereafter, on July 16, 2018, Virginia state police arrested defendant in Fairfax County for various charges.
In the motion to dismiss, defendant argues that because the May 2007 notice failed to include the date and time of defendant’s removal proceeding, the immigration court lacked jurisdiction to order defendant’s June 2007 removal and hence defendant claims that the June 2007 removal order is invalid. Accordingly, defendant argues, the indictment must be dismissed because defendant has not re-entered the United States subsequent to the entry of a valid order removing defendant from the country.
Analysis
As an initial matter, defendant’s motion must be denied because, under 8 U.S.C. § 1326(d), defendant is barred from challenging the June 2007 removal proceeding. The record reflects that defendant knowingly chose to waive his right to appeal the June 2007 removal order. Similarly, defendant cannot meet the second § 1326(d) requirement because defendant was not deprived of the opportunity for judicial review of the June 2007 removal order. Finally, defendant also fails to satisfy the third § 1326(d) factor, as there is no evidence in this record that the immigration judge’s entry of the June 2007 removal order was fundamentally unfair.
Defendant argues, however, that his due process rights were violated because the government hindered his ability to retain counsel for the removal proceeding, in violation of governing immigration law and regulations. It is unnecessary to decide whether, on this record, defendant was deprived of his due process right to a fair hearing because it is clear that defendant suffered no prejudice from the alleged defects in the proceedings. To show actual prejudice, an alien must demonstrate that but for the violation of his due process rights, there is a “reasonable probability” that the alien would not have been deported. The record persuasively indicates that defendant could not have produced any evidence to contradict the charges that defendant had overstayed his B-2 visitor visa, with or without counsel.
Next, even if defendant could clear the hurdle imposed by the three § 1326(d) requirements, his motion must nonetheless be denied because, contrary to defendant’s argument, the immigration court did have jurisdiction to order his removal in the June 2007 proceeding. The record confirms that the May 2007 notice fully complies with the regulations. It follows that the immigration court was properly vested with jurisdiction.
Seeking to avoid this conclusion, defendant argues that the Supreme Court’s decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018), requires that a notice to appear must include the date and time of the removal hearing and because the May 2007 notice failed to include this information that notice was ineffective to vest jurisdiction in the immigration court. That argument fails. Pereira does not apply to the regulatory requirements for the contents of a notice to appear for purposes of vesting the immigration court with jurisdiction over removal proceedings.
Motion to dismiss indictment denied.
United States v. Romero-Caceres, Case No. 18-cr-354, Nov. 19, 2018. EDVA at Alexandria (Ellis). VLW 018-3-513. 17 pp.
