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United States v. Gonzalez-Leal

United States District Court, E.D. North Carolina, Western Division

January 3, 2019

UNITED STATES OF AMERICA
v.
YOSIMAR GONZALEZ-LEAL, Defendant.

          MEMORANDUM AND RECOMMENDATION

          James E. Gates United States Magistrate Judge.

         This case comes before the court on defendant's motion (D.E. 21) to dismiss the indictment charging him with the sole offense of illegal reentry of an alien into the United States after having previously been removed from the United States subsequent to a conviction for a felony, in violation of 8 U.S.C. § 1326(a) and (b)(1). The motion is grounded on the contention that the removal order entered against defendant was unlawful. Defendant's supporting memorandum was incorporated into the motion. The government filed a response (D.E. 25) in opposition. The motion was referred to the undersigned for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). 2nd Public D.E. dated 26 Oct. 2018. For the reasons discussed below, it will be recommended that defendant's motion be denied.

         I. BACKGROUND

         A. Defendant's Removal from the United States

         Defendant is allegedly a citizen of Mexico. Notice to Appear (comprising pp. 1-3 of D.E. 21-1) 3; see also Def.'s Mot. 1 (noting that Mexico is defendant's country of origin).[1] On 29 July 2016, he was purportedly convicted of felonious possession of marijuana in Wake County (North Carolina) District Court. Indict. (D.E. 14) 2.

         On 26 September 2016, defendant was served in person with a notice to appear in removal proceedings. Notice to Appear 2. The notice to appear ordered defendant to appear before an immigration judge on a date "to be set" and at a time "to be set" to "show why [he] should not be removed from the United States." Notice to Appear 1. The notice nowhere specified a date or time when defendant should appear before the immigration judge. See id.

         The government asserts that defendant remained in custody pending his removal hearing and was physically present at the removal hearing on 20 October 2016. Gov.'s Resp. 2, 4; Custody Determination (D.E. 25-2) 1 (concluding that defendant would be detained pending a final administrative determination in his case). Defendant does not contest these assertions.

         At the removal hearing, the immigration judge entered an order of removal ("removal order"). Removal Ord. (comprising pp. 4-5 of D.E. 21-1) 4. The removal order indicates that defendant waived his right to appeal and that it was personally served on him. Id. at 4-5. Defendant was removed from the United States on 5 November 2016 at Eagle Pass, Texas pursuant to the removal order. Def's Mot. 1; Indict. 1.

         B. Criminal Proceedings against Defendant

         The government states that defendant again came to its attention on 8 May 2018 when he was arrested by the Raleigh Police Department for felony possession with intent to sell or deliver marijuana in violation of state law. Gov.'s Resp. 2. On 11 July 2018, he was charged by criminal complaint in this court with illegal reentry into the United States after having been removed from the United States subsequent to conviction for a felony, in violation of 8 U.S.C. § 1326(a) and (b)(1). Crim. Compl. (D.E. 1). Defendant was indicted on 25 July 2018 on the same charge. Indict.

         The sole count of the indictment reads:

On or about May 8, 2018, in the Eastern District of North Carolina, the defendant, YOSIMAR GONZALEZ-LEAL, an alien, was found in the United States after having previously been excluded, deported, and removed from the United States on November 5, 2016, at Eagle Pass, Texas, and not having obtained the express consent of the Attorney General, or his successor, to reapply for admission thereto. All in violation of Title 8, United States Code, Section 1326(a) and (b) (1).

         Indict. 1.

         The "Allegation of Prior Conviction" section reads:

For purposes of Title 8, United States. Code, Section 1326(b) (1), the defendant, YOSIMAR GONZALEZ-LEAL, was excluded, deported, and removed from the United States on November-5, 2016, at Eagle Pass, Texas, after having been convicted of possession of marijuana, a felony, on or about July 29, 2016, in the General Court of Justice, District Court Division, Wake County, North Carolina.

         Indict. 2.

         C. Defendant's Motion to Dismiss

         On 28 September 2018, defendant filed the instant motion to dismiss the indictment. He contends that dismissal is required because the removal order was unlawful on two grounds: (1) subject matter jurisdiction did not exist for entry of the removal order pursuant to the Supreme Court's recent decision in Pereira v. Sessions, __U.S.__, 138 S.Ct. 2105 (2018); and (2) the removal order violated defendant's due process rights, pursuant to 8 U.S.C. § 1326(d).

         II. APPLICABLE LAW

         A. Dismissal of an Indictment

         There are several legal theories under which an indictment can be dismissed where the removal order underlying a charge of illegal reentry of a removed alien is found to be unlawful.

         Where the removal order is found to have been entered without subject matter jurisdiction, that fact alone can be a basis for dismissal. "[T]he immigration court's lack of this [subject matter] jurisdiction justifies dismissing the indictment." United States v. Pedroza-Rocha, No. EP-18-CR-1286-DB, 2018 WL 6629649, at *4 (W.D. Tex. 21 Sept. 2018) (citing, e.g., United States v. Vir-gen-Ponce, 320 F.Supp.3d 1164, 1166 (E.D. Wash. 2018)). The courts in both Pedroza-Rocha, 2018 WL 6629649, at *2-4, and Virgen-Ponce, 320 F.Supp.3d at 1165-66, found that, as defendant argues in this case, subject matter jurisdiction for entry of the removal orders was lacking pursuant to Pereira.

         Another theory is failure to establish an essential element of an illegal reentry charge. Specifically, "[t]o win a conviction [for illegal reentry] under [8 U.S.C.] § 1326, the government must prove, as an element of the offense, the defendant's prior removal or deportation." United States v. Moreno-Tapia, 848 F.3d 162, 165 (4th Cir. 2017) (citing United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005)). Where the removal order is found to be unlawful, the defendant has not been removed as a matter of law and the government therefore cannot obtain a conviction. See Pedroza-Rocha, 2018 WL 6629649, at *5.

         An indictment charging unlawful reentry can also be dismissed when the defendant establishes that the removal order violated his due process rights under 8 U.S.C. § 1326(d) ("§ 1326(d)"). As discussed further below, there are three requirements a defendant must meet to obtain relief under § 1326(d). "[I]f the defendant satisfies all three requirements, the ...


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