United States v. Beltran

1

UNITED STATES OF AMERICA, v. MARIO MARTINEZ BELTRAN, Defendant.

No. 21 CR 473 (CM)

United States District Court, S.D. New York

March 16, 2022

DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT

MCMAHON, J.

Defendant Miguel Martinez Beltran (“Martinez”) has been charged in a one count indictment with illegal reentry, in violation of 8 U.S.C. §§1326(a) and (b)(1).

Before the Court is Martinez's motion to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12, on the grounds that the immigration court that purported to order his removal in April of 1999 lacked jurisdiction to do so. The Government opposes the motion.

Background

The Defendant's Initial Conviction &Deportation Proceeding

The defendant is a native of Mexico (Decl, of Mario Martinez Beltran (“Defendant Decl.”) ¶ 2.) In or about 1996, the defendant came to the United States when he was approximately seventeen years old. (Id. ¶¶ 2, 5, 6.) On or about March 20, 1999, the defendant was arrested and charged in New York state court with criminal possession of a firearm in the second degree on school grounds, in violation of New York Penal Law 265.03 and criminal possession of a weapon (firearm) in the fourth degree, in violation of New York Penal Law 265.01. (RAP.) On March 25, 1999, the defendant pled guilty in New York Criminal Court to criminal possession of a weapon in the fourth degree, in violation of New York State Penal Law 265.01(1) and was sentenced to 30 days in prison. (Decl, of S. Isaac Wheeler (“Wheeler Decl.”) ¶ 4.)

While detained in state custody for the 1999 Conviction, the defendant was interviewed in Spanish by an officer with the Immigration and Naturalization Service (“INS”), who identified the defendant as an undocumented immigrant and lodged a “detainer” form with the warden of the “CIFM” facility on Rikers Island. (Wheeler Decl. ¶ 5, Ex C; Ex. D). On April 5, 1999, the INS officer prepared and signed the initial notice-to-appear (“NTA”) that was served upon the defendant. (See Wheeler Decl. Ex. E.) Specifically, this initial NTA alleged that: (i) the defendant was not a citizen of the United States; (ii) the defendant was a native and citizen of Mexico; and (iii) the defendant entered the United States on an unknown date, at an unknown place, other than as designated by the Attorney General. (Id.) Accordingly, the defendant was charged with being subject to removal from the United States pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act. (Id.) The initial NTA ordered the defendant “to appear before an immigration judge of the United States Department of Justice” at a time and place to be calendared at a later date with the notice to be sent by the Office of the Immigration Judge. (Id.)

After completing his state sentence for the 1999 Conviction, the defendant was transferred into INS custody and was served with a copy of the warrant of arrest, along with a form informing him that he would be detained pending removal proceedings and removal. (Wheeler Decl. Ex. F.) On April 9, 1999, a healing notice (the “April 1999 Notice”) was served on the defendant “c/o Custodial Officer, ” informing the defendant that his removal proceeding would take place on April 12, 1999 at 8:30 a.m. at 201 Varick Street, Room 1140, New York, NY 10014. (Wheeler Decl. Ex. H.) The April 1999 Notice advised the defendant of his right to be represented at the removal proceeding. (Id.)

On April 12, 1999, the defendant appeared in person for a removal hearing before an immigration judge (“IJ”), which was conducted in English with the assistance of a Spanish interpreter. (See Wheeler Decl. Ex. I.) At the outset of the proceeding, the IJ advised the defendant of his right to be represented at the proceeding at no expense to himself or to represent himself. The defendant did not respond to the question but indicated that he did not wish to fight his case and wanted to be deported. (Id.) Thereafter, the IJ asked again whether the defendant wanted to proceed with the hearing without an attorney and waive his right to counsel. (Id.) The defendant answered “Yeah.” (Id.) During the course of the hearing, the IJ offered on more than one occasion to adjourn the defendant's case to allow him more time to consider his decision or to seek other counsel. The defendant declined and elected to proceed with the hearing.

In response to the IJ's subsequent questions, the defendant confirmed that he had received on April 9 the requisite immigration forms, including the NTA and the charges against him. (Id.) The defendant then waived his right to postpone the hearing because he had received the April 9 NTA. (Id.) The IJ read the allegations against the defendant and the consequences if the allegations were found to be true. (Id.) The IJ outlined the defendant's rights if he contested the allegations, which the defendant acknowledged that he understood. (Id.) Thereafter, the IJ confirmed that the defendant was not a U.S. citizen and that he had crossed the U.S. border unlawfully. When the IJ then asked, “You understand you could be deported or removed for arriving in that fashion?” the defendant answered. “Yes.” The IJ advised the defendant of his right of voluntary removal in lieu of deportation The IJ explained that if the defendant wanted to apply for this relief, the IJ would adjourn the defendant's case. The IJ then asked, “do you even have money to pay for your own transportation out of the United States?” To which the defendant said, “no” and proceeded to ask a question related to how long it would take to be sent back to Mexico. The IJ advised that he would be sent as soon as possible.

At the conclusion of the proceeding, the IJ informed the defendant of his decision to enter an order to remove the defendant back to Mexico. When asked by the IJ, the defendant confirmed that he did not wish to appeal this decision. Specifically, the following exchange occurred:

IJ: Sir, I am going to enter an order, ordering that you be removed from the United States back to Mexico for the reasons that have been explained. Because you are being deported, you will have to wait at least ten years before you are eligible to apply to come back to the United States. There's no guarantee you'll ever be permitted to come back .... If you return illegally, you'll have to be deported. It's a different process... [U/I] because you are coming back unlawfully. Do you understand?

Defendant: Yes.

IJ: Knowing all those factors, sir, do you wish to accept my decision ordering that you be removed and deported back to Mexico as a final decision in your case or do you wish to appeal to a higher court?

Defendant: U/I

IJ: No Appeal

Defendant: No

IJ: That means that they will make arrangements to send you back to your country. [U/I] Is that what you wish?

Defendant: Yes.

To be sure, at no point during the hearing did the judge identify any problem with the putative NTA or state or suggest that the judge lacked jurisdiction to act in the removal case. (Wheeler Decl. ¶ 11). And Martinez-who says he was not able to read the English-language NTA form-claims he was not aware of any such defense to removal at the time of his immigration case. (Ex. A ¶ 12). Defendant claims in his current motion that, had he known he had such defenses, he would have pressed this issue on appeal, because his goal was to remain in the United States to continue to earn money for as long as possible. Id. ¶ 13. He also says that he was not aware that he had judicial remedies outside the removal process. Id. ¶14.

At the conclusion of the hearing, a final order of removal was entered (the “April 1999 Order of Removal”). (Wheeler Decl. K.) On or about April 30, 1999, the defendant was removed to Mexico.

Defendant Reenters U.S.- Convicted of Robbery-Deported Once More-Reenters U.S. Yet Again- Rearrested for Criminal Possession of a Weapon-Indicted for Illegal Reentry

On or about September 25, 2000, the defendant re-entered the United States without authorization. (Gov't Ex. A.) On August 14, 2003, the defendant was convicted in New York County Criminal Court of robbery in the third degree, in violation of New York State Penal Law 160.05 (the “2003 Conviction”). On January 13, 2004, the defendant was ordered removed to Mexico based on the April 1999 Order of Removal. On September 28, 2004, the defendant was removed to Mexico for the second time.

Sometime following the 2004 removal, the defendant returned yet again to the United States. Continuing the pattern of illegal entries and arrests, defendant was arrested in New York County on October 19, 2019 for, inter alia, criminal possession of a weapon in the second degree, in violation of New York State Penal Law 265.03. And on July 26, 2021, he was federally indicted for illegal reentry in violation of 8 U.S.C. 1326(a) and 1326(b)(1).

Defendant's Motion

Martinez moves to dismiss the present illegal reentry indictment alleging that: (i) his April 1999 immigration proceeding was void, in that the immigration court lacked jurisdiction because the initial NTA did not include the address of the immigration court where the initial NTA was filed or the date or time of the hearing: (ii) the collateral attack requirements of 8 U.S.C. 1326(d) do not apply to him because there is no removal order to attack collaterally; and (iii) assuming the defendant is required to satisfy the requirements of Section 1326(d), he has done so.

The dismissal of an indictment is an ‘extraordinary remedy' reserved only for extremely limited circumstances implicating fundamental rights. United States v. De La Pava, 268 F.3d 157, 165 (2d. Cir. 2001). Under certain limited circumstances. Section 1326(d) allows a defendant to mount a collateral attack...