United States v. Castro-Aleman

1

UNITED STATES OF AMERICA v. VICTOR MANUEL CASTRO-ALEMAN, Defendant.

CRIMINAL No. 3:23CR51(RCY)

United States District Court, E.D. Virginia, Richmond Division

August 2, 2023

MEMORANDUM OPINION

Roderick C. Young United States District Judge

This matter is before the Court on Defendant Victor Manuel Castro-Aleman's Motion to Dismiss the Indictment (ECF No 17). The Motion has been fully briefed. On July 27, 2023, the Court held a hearing on Defendant's Motion to Dismiss the Indictment and indicated that an opinion was forthcoming. For the reasons stated herein, the Court will deny the Motion to Dismiss.

I. FACTUAL ALLEGATIONS

On April 20, 2023, a grand jury returned an Indictment (ECF No. 1) charging Victor Manuel Castro-Aleman (“Mr. Castro-Aleman” or “the Defendant”) with one count of Illegal Reentry After Felony Conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). As stated in the Indictment, the instant motion and attached exhibits, and the response to that motion, that charge is based upon the following alleged facts.

Mr. Castro-Aleman was born in El Salvador and fled the country after his father was killed by the left-wing faction during the country's civil war in 1973. (Mot. Dismiss 1, ECF No. 17.) Mr. Castro-Aleman came to the United States when he was eight years old, first arriving in California and moving to Virginia in the 1980's. (Id.) Sometime in the 1980's, he was issued a work permit, along with a social security number. (Id.)

Mr. Castro-Aleman was convicted of driving under the influence four times between 2009 and 2014, in Chesterfield County, Virginia. (Opp'n Mot. Dismiss 1, ECF No. 19.) On the third charge, Mr. Castro-Aleman was sentenced to five years imprisonment. (Id. 2.) On the fourth charge, he was sentenced to another five years plus twelve months after he presented a driver's license falsely identifying himself as a resident of California. (Id.) In total, Mr. Castro-Aleman has been sentenced to over twelve years imprisonment. (Id.)

Immigrations and Customs (“ICE”) officials first encountered Mr. Castro-Aleman after he presented agents with a false identity and claimed to be a United States citizen while in custody at Riverside Regional Jail in 2015. (Id.) In December 2015, ICE completed its investigation of these claims and issued Mr. Castro-Aleman a Notice to Appear in removal proceedings under Section 240 of the Immigration and Nationality Act. (Id.) The Notice to Appear charged that the Defendant was subject to removal from the United States for three reasons: (1) being an alien present in the United States without being admitted or paroled; (2) being an alien who had been convicted of, or had admitted to committing acts that constitute the essential elements of, a crime involving moral turpitude; and (3) being an alien who had been convicted of two or more offenses for which the aggregate sentences of incarceration exceeded five years. (Id.)

In February 2016, Mr. Castro-Aleman appeared pro se before an immigration judge, Judge Snow, and testified that he was unable to find a lawyer. (Mot. Dismiss 2.) Judge Snow asked Mr. Castro-Aleman if he had any fear of returning to El Salvador. Mr. Castro-Aleman confirmed that he did. (Id. 3; Opp'n Mot. Dismiss 3.) The judge then inquired about Mr. Castro-Aleman's ties to the United States, in response, Mr. Castro-Aleman testified that his ties included his two children, both natural born citizens, and his mother, who is either a legal permanent resident or a citizen. (Mot. Dismiss 3.) At the conclusion of the hearing, Judge Snow directed a correctional officer to provide Mr. Castro-Aleman with an I-589 asylum form to fill out and return within three weeks of the hearing. (Opp'n Mot. Dismiss 3-4.) The judge closed by noting that “from what you've told me so far, it doesn't look real good but I won't make any judgments until I give you a full and fair hearing on your application.” (Id. 4.)

On March 9, 2016, Mr. Castro-Aleman appeared again before Judge Snow. Judge Snow noted that he never received the I-589 form from Mr. Castro-Aleman, and Mr. Castro-Aleman said it was because he was unable to obtain a copy of his father's death certificate. (Mem. Supp. Mot. Dismiss Ex. 4 at 2, ECF No. 18-2.) Judge Snow asked Mr. Castro-Aleman if he wanted additional time, but Mr. Castro-Aleman declined and requested voluntary departure. (Id. 3.) Judge Snow noted that Mr. Castro-Aleman was not a good candidate for voluntary departure based on his criminal record and instead asked if Mr. Castro-Aleman wanted an immediate departure. (Id.) Mr. Castro-Aleman accepted the immediate departure, noting that he was unable to obtain his father's death certificate as evidence for an asylum claim. (Id.) Judge Snow asked Mr. Castro-Aleman “[d]o you want to accept it as final and be removed or appeal it to a higher court?” (Id. 4.) Mr. Castro-Aleman responded “[n]o” and requested information as to how he would be returned to his country since he lacked a passport or identification. (Id.) Mr. Castro-Aleman then started to ask a question of the judge, but the recording abruptly ends. (Id.)

II. RELEVANT PROCEDURAL HISTORY

On April 20, 2023, the grand jury returned an Indictment charging Defendant Castro-Aleman with one count of Illegal Reentry After Felony Conviction, in violation of 8 U.S.C. § 1326(a) and (b)(1). (ECF No. 1.) Mr. Castro-Aleman had his initial appearance on April 24, 2023 and was arraigned on April 27, 2023. (ECF Nos. 6, 10.) On May 1, 2023, the Court issued a Criminal Scheduling Order, setting an initial trial date of June 26, 2023. (ECF No 12.)

On May 8, 2023, the Defendant filed his first Motion to for Extension of Time to File Pretrial Motions, which the Court granted the next day. (ECF Nos. 13, 14.) On May 23, Defendant filed a second Motion for Extension of Pretrial Motions. (ECF No. 15.) The Court again granted that motion. (ECF No. 16.) On June 5, 2023, the Defendant filed the instant Motion to Dismiss the Indictment. (ECF No. 17.) The Government filed its Response on June 19, 2023 (ECF No. 19), and the Defendant filed his Reply on June 23, 2023 (ECF No. 21). The Court vacated the trial date pending resolution of pretrial motions, including the pending Motion to Dismiss. (ECF No. 20.) On July 27, 2023, the Court held a hearing regarding the present Motion, at the conclusion of which the Court informed the parties that it would defer ruling on the matter, pending issuance of a formal opinion.

III. LEGAL STANDARD

A criminal indictment must contain every essential element of the offenses charged, fairly inform a defendant of the charges, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offenses. United States v. Perry, 757 F.3d 166, 171 (4th Cir. 2014). A defendant “may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits,” including “a defect in the indictment such as a failure to state an offense.” Fed. R. Crim. P. 12(b)(1), 12b(3)(B). When considering a motion to dismiss, “the indictment allegations are presumed to be true, and the motion should not ordinarily be used as a vehicle to test the sufficiency of the evidence behind the allegations.” United States v. Lewis, 262 F.Supp.3d 365, 368 (2017) (quoting United States v. Treacy, 677 Fed.Appx. 869, 873 (4th Cir. 2017). Thus, to challenge the sufficiency of an indictment, a defendant must demonstrate that the allegations therein, even if true, would not state an offense. United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004). The district court may dismiss an indictment before trial based upon “an infirmity of law,” but not based upon a determination of facts that will be developed at trial. Lewis, 262 F.Supp.3d at 368.

IV. ANALYSIS

Mr. Castro-Aleman moves the Court to dismiss his Indictment on the basis that the removal order underlying his prior deportation is invalid because the immigration judge violated due process by failing to inform him that his own testimony could be sufficient evidence to support an asylum request and because the hearing was fundamentally unfair.

Section 1326 of the Immigration and Nationality Act establishes criminal penalties for any noncitizen who:

has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter . . . enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act.

8 U.S.C. § 1326(a). Further, 8 U.S.C. § 1326(d) outlines the circumstances when a defendant may collaterally attack their prior removal order. The statute provides that in order to challenge the validity of a deportation order, the noncitizen must satisfy three requirements: “(1) the alien 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 order was fundamentally unfair.” See also United States v. Fernandez Sanchez, 46 F.4th 211, 218 (4th Cir. 2022); United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005). A defendant must satisfy all three of the above requirements to prevail on their challenge. United...