United States v. Lopez-Mojica

1

UNITED STATES OF AMERICA, v. DOUGLAS ENRIQUE LOPEZ-MOJICA, Defendant.

CRIMINAL ACTION No. 3:22cr167

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

May 11, 2023

OPINION

John A. Gibney, Jr., Senior United States District Judge

In November 2022, a grand jury indicted Douglas Enrique Lopez-Mojica, an El Salvadoran national, on one count of illegal reentry, pursuant to 8 U.S.C. § 1326. Lopez-Mojica moves to dismiss the indictment, challenging the validity of a 2006 removal order issued by an immigration court in Michigan. He argues that he did not receive notice of the hearing, the lack of notice violated his due process rights, and the immigration court's order in absentia prejudiced him because he could have qualified for voluntary departure. The Court held a hearing on the motion on January 20, 2023, and allowed the parties to submit supplemental briefing. Having reviewed the supplemental briefing and the record, the Court finds that Lopez-Mojica has not met his burden to collaterally attack the 2006 removal order. Accordingly, the Court will deny his motion to dismiss the indictment.

I. BACKGROUND

Beginning in 2001, Lopez-Mojica has snuck across the border into the United States multiple times. In August 2005, ICE officers questioned Lopez-Mojica in Michigan, where he had been detained on charges of driving while impaired and disorderly conduct. They served the defendant with a Notice to Appear (“NTA”) at a hearing before an immigration judge. The NTA included neither a date nor a time for the hearing.^[1] Immigration services issued a Notice of Hearing (“NOH”), which set the hearing for September 26, 2005, by fax to the custodial officers at the jail where Lopez-Mojica was detained. Lopez-Mojica denies receiving this NOH.

Immigration services mailed a second NOH on September 15,2005, to an address provided in Lopez-Mojica's bond paperwork. The second NOH gave notice that the hearing had moved to November 22, 2005. Lopez-Mojica denies receiving the second NOH. When he did not attend the November 22, 2005, hearing, immigration services mailed Lopez-Mojica a third NOH to give him notice that the hearing had moved to January 31, 2006. Although Lopez-Mojica admits he lived at the address to which immigration services mailed the third NOH (the “Clawson address”), he denies receiving the third NOH. He returned to El Salvador in December 2005. The immigration court conducted a hearing in absentia on January 31, 2006 and entered an order of removal.

Lopez-Mojica has since unlawfully entered the country multiple times. The government has removed him three times pursuant to the 2006 removal order: in May 2006, in February 2008, and then again in January 2010, following a conviction for illegal reentry in this Court. (Criminal Action No. 3:09cr330.) In 2021, Richmond Police arrested him on a felony charge. (ECF No. 19, at 5.) A state court convicted Lopez-Mojica and sentenced him to 20 years with 17 years, 11 months suspended. (Id.) In November 2022, a grand jury indicted Lopez-Mojica on one count of illegal reentry.

II. LEGAL STANDARD

The defendant bears the burden of proof on a motion to dismiss an indictment. An indictment “must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Fed. R. Cr. P. 7(c)(1). “[A]n indictment is sufficient if it alleges an offense in the words of the statute .... More specifically, an indictment is legally sufficient if ... it alleges the essential elements of the offense.” United States v. Rendelman, 641 F.3d 36, 44 (4th Cir. 2011). Accordingly, a court should dismiss an indictment if it fails to allege an essential element of the charged offense.

An individual who “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 ... shall be fined under Title 18, or imprisoned not more than 2 years, or both.” 8 U.S.C. § 1326(a). In illegal reentry cases, a court must dismiss the indictment when the defendant establishes the removal order does not exist or is invalid.

In a criminal proceeding, a defendant may collaterally attack the underlying removal order if (1) the defendant has exhausted all administrative remedies; “(2) the deportation hearings 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.” Id. § 1326(d). The defendant must establish each of the three elements by a preponderance of the evidence. “[I]f the defendant satisfies all three requirements, the illegal reentry charge must be dismissed as a matter of law.” United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005).

The defendant may establish the first two prongs in § 1326(d) by asserting he did not receive notice of the removal proceedings. Id. at 663-64. An individual subject to removal proceedings shall receive written notice “specifying... [t]he nature of the proceedings against the alien[;] .... [t]he time and place at which the proceedings will be held[;] . . . [and t]he consequences under section 1229a(b)(5) of this title of the failure, except under exceptional circumstances, to appear at such proceedings.” 8 U.S.C. §§ 1229(a)(1)(A), (G)(i)-(ii). “The written notice by the Attorney General shall be considered sufficient for purposes of this subparagraph if provided at the most recent address provided under section 1229(a)(1)(F) of this title.” Id. § 1229a(b)(5)(A). An individual who does not attend the removal hearing “shall be ordered removed in absentia if the Service establishes by clear, unequivocal, and convincing evidence that the written notice was so provided and that the alien is removable.” Id. A defendant does not have notice when he has not received written notice of the date and time of a deportation hearing. El Shami, 434 F.3d at 663.

For the third prong, “[t]o demonstrate fundamental unfairness, ‘a defendant must show that (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.'” Id. at 664 (quoting United States v. Wilson, 316 F.3d 506, 510 (4th Cir. 2003) abrogated on other grounds by Lopez v. Gonzales, 549 U.S. 47 (2006)). “[T]o meet the actual prejudice requirement, [the defendant] must demonstrate ‘that, but for the errors complained of, there was a reasonable probability that he would not have been deported.'” United States v. Lopez-Collazo, 824 F.3d 453,463 (4th Cir. 2016) (quoting El Shami, 434 F.3d at 665). “[T]he defendant must link the actual prejudice he claims to have suffered to the specific due process violation at issue.” Id. A defendant cannot establish fundamental unfairness if “his deportation was a foregone conclusion at that time” of the removal hearing. Id. at 465-66.

III. DISCUSSION

The indictment against Lopez-Mojica states

DOUGLAS ENRIQUE LOPEZ-MOJICA, an alien who had previously been removed from the United States on May 8, 2006, again on February 8, 2008, and again on January 21,2010, was found in the United States without having obtained the express consent of the Attorney General or his successor, the Secretary of Homeland Security, to reapply for admission to the United States, (in violation of Title 8, United States Code, Section 1326(a), (b)(1)).

(ECF No. 4.)

Lopez-Mojica launches a collateral attack on the 2006 removal order. He argues that he did not receive notice and that the immigration court's entry of the removal order was fundamentally unfair. Because Lopez-Mojica has not satisfied his burden as to notice and fundamental unfairness, his collateral attack on the 2006 removal order fails. Accordingly, the Court will deny his motion to dismiss the indictment.

A. Lack of Notice

Lopez-Mojica contends that he has satisfied the first two requirements in § 1326(d) because he did not receive notice of his removal hearing. He advances two arguments: first, the omission of a time and place in the NTA violated his due process rights, creating a fatal flaw that no subsequent NOH could remedy; and second, he did not receive any of the three NOH.

1. The NTA Omitted the Time and Place of the Hearing

Lopez-Mojica argues that the absence of time and place in the NTA violated his right to due process because he did not have notice of the removal hearing. He further argues that the three NOHs that included the time and place of his removal hearing could not remedy the omission in the NTA. Lopez-Mojica draws on Pereira v. Sessions, 138 S.Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S.Ct. 1474 (2021), which interpreted the notice requirement for the stop-time rule as it relates to the cancellation of removal for certain aliens. Pereira held that an NTA must include the time and place of the hearing to constitute notice and to trigger the stop-time rule. In the same context, the Niz-Chavez Court held that including the time and place of the hearing in a subsequent NOH does not cure the NTA's omission. The Pereira Court stressed that its holding addressed a “narrow question.” Pereira, 138 S.Ct. at 2110. The defendant cites a single unpublished case out of the Western District of Virginia, which found that Pereira did apply to removal hearings held in absentia. United States v. Ramos-Delcid, 2018 WL 5833081, 3:18cr20 (W.D. Va. Nov. 7,2018). In the intervening years, no other court has so held.

Instead the Court follows the plain language of the statute, which allows for removal in absentia when an alien receives either an NTA or an NOH. 8 U.S.C. § 1229a(b)(5)(A). Section 1229a mandates removal in absentia when “[a]ny alien who, after written notice required under pa...