United States v. Amaya-Reyes

MEMORANDUM OPINION

Michael F. Urbanski Chief United States District Judge.

This matter is before the court on defendant Marcelino Amaya-Reyes's, represented by counsel, motion to dismiss the indictment in this case. ECF No. 28. For the reasons stated below, the court DENIES Amaya-Reyes's motion to dismiss.

I.

Defendant Marcelino Amaya-Reyes is a native and citi2en of Honduras. Form 1-860 Expedited Removal O., ECF No. 28-1. On June 24, 2007, at approximately 5:00 a.m., Amaya-Reyes "illegally . . . wad[ed] across the Rio Grande River approximately 14.1 miles north west of Laredo, Texas[.]" Id. On June 25, 2007, Amaya-Reyes was detained by the U.S. Immigration and Naturali2ation Service ("INS"). An immigration officer read from INS Form I-867A before asking Amaya-Reyes to make a statement. The INS form provided:

You do not appear to be admissible or to have the required legal papers authorizing your admission to the United States This may result in your being denied admission and immediately returned to your home country without a hearing If a decision is made to refuse your admission into the United States, you may be immediately removed from this country, and if so, you may be barred from reentry for a period of 5 years or longer

This may be your only opportunity to present information to me and the Immigration and Naturalization Service to make a decision. It is very important that you tell me the truth. If you lie

or give misinformation, you may be subject to criminal or civil penalties, or barred from receiving immigration benefits or relief now or in the future.

Except as I will explain to you, you are not entitled to a hearing or review.

Record of Marcelino Amaya-Reyes Sworn Statement, ECF No. 28-2. Pursuant to this advisement, Amaya-Reyes stated that he (1) entered the United States looking for work; (2) intended to reside in North Carolina; and (3) planned to stay in the country for three years. Id. He further asserted that he was not seeking asylum, nor did he fear harm if he was returned to Honduras. Id.

On June 25, 2007, Amaya-Reyes was found to be inadmissible to the United States by the INS because he was not a citizen or national of the United States, he is a native and citizen of Honduras, and he was an "immigrant not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Immigration and Nationality Act. . . ." Form 1-860 Expedited Removal O., ECF No. 28-1. As such, Amaya-Reyes was ordered to be removed, see id, and was so removed on July 6, 2007, Form 1-296 Verification of Removal, ECF No. 28-4. Pursuant to his removal order, Amaya-Reyes was prohibited from "entering, attempting to enter, or being in the United States for a period of 5 years form the date of [his] departure from the United States . . . ." Form 1-296 Verification of Removal, ECF No. 28-4. From the moment Amaya-Reyes was initially detained by the INS to his removal on July 6, 2007, he was not informed of a right to counsel nor was he represented by counsel.

On May 16, 2019, Amaya-Reyes was charged in a one-count indictment, alleging that around April 25, 2019, without the express consent of the Secretary of the Department of

Homeland Security, Amaya-Reyes was found in the Western District of Virginia after having been previously removed from the country in violation of 8 U.S.C. § 1326(a). Indictment, ECF No. 1. Amaya-Reyes now moves the court to dismiss the indictment pursuant to a collateral attack to prosecution under 8 U.S.C. § 1326(d), asserting that his expedited removal proceeding was fundamentally unfair because (1) his due process rights were violated when he was not afforded his right to counsel; (2) he was not provided his right to counsel under the Administrative Procedure Act; and (3) he was prejudiced by not receiving counsel because counsel would have advised him to withdraw his application for admission, which, if granted, would have prevented Amaya-Reyes from now being charged under § 1326(a). ECF No. 28. The parties jointly agreed to stay the proceedings pending the appeal of United States v. Qumteros Guzman.. No. 3:18-cr-31, 2019 WL 3220576 (W.D. Va. July 17, 2019), which addresses the same issues present in this case. See ECF No. 29. Having now been decided, see United States v. Guzman, 998 F.3d 562 (4th Cir. 2021), the court denies the motion to dismiss.

II.

A defendant may allege a "failure to state an offense" defect in his indictment in a pretrial motion. Fed. R Crim. P. l2(b)(3)(B)(v). The indictment must be a "plain, concise, and definite statement of the essential facts constituting the offense charged." Fed. R Crim. P. 7(c)(1). Furthermore, a court "should regard all well pleaded facts as true when considering a motion to dismiss an indictment." United States v. Dove. 70 F.Supp.2d 634, 636 (W.D. Va. 1999). "Motions to dismiss indictments, therefore, should generally be denied unless the defendant demonstrates that 'the allegations therein, even if true, would not state an offense.'"

Oumteros Guzman. 2019 WL 3220576, at *2 (quoting United States v. Thomas. 367 F.3d 194, 197 (4th Cir. 2004)).

III.

Section 1326(a) states that '"any alien who . . . has been . . . deported[ or removed . . . and thereafter enters ... or is at any time found in[ ] the United States' without permission shall be punished." Guzman. 998 F.3d at 566 (quoting 8 U.S.C. § 1326(a)). In order to be convicted under this statute, the government must prove "(1) that the defendant is an alien; (2) that he was deported or removed from the United States; (3) that he thereafter reentered . . . the United States; and (4) that he lacked permissions to do so." United States v. Ayon-Bnto. 981 F.3d 265, 269 (4th Cir. 2020).

Amaya-Reyes challenges the second element. Specifically, he asserts that his expedited removal proceeding violated his Fifth Amendment due process right to counsel and conflicted with his right to counsel under the Administrative Procedure Act ("APA") because he was not provided with counsel nor given the opportunity to secure counsel at his expedited removal proceeding. As such, Amaya-Reyes argues that his lack of counsel was fundamentally unfair pursuant to § 1326(d), resulting in prejudice. See 8 U.S.C. § 1326(d) (allowing collateral attacks on underlying removal orders that are "fundamentally unfair").

A. Amaya-Reyes may collaterally attack his underlying removal order.

For a collateral attack against an underlying removal order to be successful, the defendant must demonstrate that "(1) he exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3)

the entry of the deportation order was fundamentally unfair."^[1] United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005).

Amaya-Reyes's underlying 2017 removal order was not subject to review. Therefore, he is permitted to challenge the validity of his removal because it is an element of the instant offense of illegal reentry. Guzman, 998 F.3d at 566. "[W]hen an expedited removal is alleged to be an element in a criminal prosecution, the defendant in that prosecution must, as a matter of due process, be able to challenge the element-i.e., to contend that the removal was invalid-if he did not have a prior opportunity to do so." United States v. Villarreal Silva. 931 F.3d 330, 335 (4th Cir. 2019) (emphasis omitted); see United States v. Mendo2a-Lope2, 481 U.S. 828, 837-38 (1987). As such, the second element has been met.

In order to prove fundamental unfairness under § 1326(d), the defendant "must show that (1) his due process rights were violated by defects in his underlying deportation proceedings, and (2) he suffered prejudice as a result of the defects." El Shami, 434 F.3d at 664. To show prejudice, Amaya-Reyes must prove that "but for the errors complained of, there was a reasonable probability that he would not have been deported." Id. at 665.

B. There is no Fifth Amendment due process right to counsel during expedited removal proceedings.

The Due Process Clause did not entitle Amaya-Reyes to counsel when apprehended at the border and promptly removed. Under Fourth Circuit and Supreme Court precedent, "while an alien who has already effected an entry into the United States is entitled to due process, . . . 'an alien who tries to enter the country illegally is treated as an applicant for

admission' and therefore does not have the same status for due process purposes as an alien who has 'effected an entry.'" United States v. Guzman. 998 F.3d 562, 569 (4th Cir. 2021) (emphasis omitted) (citing Department of Homeland Security v. Thuraissigiam. 140 S.Ct. 1959, 1982 (2020)). Moreover, '"an alien at the threshold of initial entry cannot claim any greater rights under the Due Process clause' than those allowed by Congress.'" Guzman, 998 F.3d at 569 (citing Thuraissigiam. 140 S.Ct. at 1964).

Because Amaya-Reyes was merely an "applicant for admission" when he was apprehended at the border, the INA's admission procedures constitute the extent of due process available to him. Id. Guzman. with similar facts and identical procedural posture to the present case, is instructive. In Guzman. the appellant was apprehended at the United States border having entered the country to seek work. 998 F.3d at 565. Expedited removal proceedings were instituted against Guzman following his failure to produce a valid entry document and his decision not to seek asylum. Id. Two years after Guzman's removal, immigration officers...