United States v. Pineda-Garcia, CRIMINAL NO. 2:18cr86

381 F.Supp.3d 694

UNITED STATES of America,

v.Felix PINEDA-GARCIA, Defendant.

CRIMINAL NO. 2:18cr86

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

Signed May 22, 2019

Kevin M. Comstock, Stephen Westley Haynie, United States Attorney's Office, Norfolk, VA, for United States of America,

Andrew William Grindrod, Office of the Federal Public Defender, Norfolk, VA, for Defendant.

OPINION

REBECCA BEACH SMITH, UNITED STATES DISTRICT JUDGE

This matter comes before the court on Defendant's Motion to Dismiss Indictment ("Motion"), filed on March 4, 2019. ECF No. 14. Defendant's Motion raises two independent grounds for dismissal. Id. at 1. First, Defendant asserts that the government failed to serve him with a Notice of Hearing to give him actual notice of his rescheduled removal hearing, which violated his right to due process and prejudiced his ability to appear and defend against his removal. Id. Second, Defendant asserts that the immigration court did not have jurisdiction to issue the Removal Order against him due to a defect in the Notice to Appear. Id.

The United States filed a Response to Defendant's Motion ("Response") on March 13, 2019. ECF No. 15. Defendant filed a Reply to Government's Response ("Reply") on March 19, 2019, ECF No. 16, and a Notice of Request for Hearing ("Request for Hearing") on March 20, 2019, ECF No. 17. The United States filed a Response Opposing Request for an Immediate Hearing, requesting the court not hold an evidentiary hearing until receipt of the complete record of proceedings before the administrative immigration court ("record of immigration proceedings"). ECF No. 18. On March 22, 2019, the court issued an Order granting Defendant's Request for Hearing, to be held after receipt of the record of immigration proceedings. ECF No. 19. On March 29, 2019, the United States filed a Supplement to Response. ECF No. 20. The Supplement to Response informed the court that on March 28, 2019, the United States received the record of immigration proceedings. Id. at 1. Defendant's Motion was set for a hearing on April 30, 2019.

On April 18, 2019, the United States filed a Memorandum of Law Regarding Attorney-Client Privilege and Communication of Immigration Hearing Notification ("Memorandum of Law"). ECF No. 23. On April 22, 2019, Defendant filed a Notice ("Defendant's Notice"), informing the court that he no longer proceeds on his "actual-notice claim" because the record of immigration proceedings includes a Notice of Hearing for the September 11, 2008 removal hearing. ECF No. 24 at 1 (citing ECF No. 20-6). Defendant proceeds only on his jurisdictional claim. Id. Defendant's Notice also indicated that he believed an evidentiary hearing was no longer necessary. Id. The United States filed a Response to Defendant's Notice, requesting the court proceed with the hearing to fully develop the record. ECF No. 25.

On April 30, 2019, the court held the hearing. ECF No. 26. At the hearing, the United States presented evidence, Defendant confirmed his withdrawal of his "actual-notice claim,"¹ and the court heard arguments of counsel regarding Defendant's jurisdictional claim. Id. The matter is now ripe for decision.

I.

The following information is taken from the numerous exhibits filed in this case, which include documents from Defendant's immigration and state court records. The parties do not dispute the authenticity and veracity of these documents and the information contained therein. See Mot. at 1-4; Resp. at 2-3.

Defendant is a citizen of Mexico who entered the United States without authorization in April of 2003. Notice Appear at 1, ECF No. 15-5. On August 9, 2007, after immigration authorities took him into custody, Defendant was personally served with a Notice to Appear. Id. at 2. The Notice to Appear alleged that Defendant was not a United States citizen and had entered the United States without being inspected by immigration authorities. Id. at 1. The Notice to Appear ordered Defendant to appear for a hearing before an immigration judge on March 27, 2008, at 9:00 A.M. Id. The line for the address of the immigration court on the Notice to Appear was left blank. Id.

In the interim, on August 23, 2007, Defendant was released on a personal recognizance bond, which was signed by Defendant, and which set forth the scheduled immigration proceeding, indicating not only the date and time of the proceeding, but also the location of the courthouse. Order Release Recognizance, ECF No. 15-6. Defendant subsequently retained counsel to represent him in the immigration proceedings, and the immigration attorney filed a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court on March 13, 2008. ECF No. 14-3. Defendant's immigration attorney requested a continuance of the March 27, 2008 hearing. Mot. Continue, ECF No. 15-7. The proceedings were continued to September 11, 2008, and a new Notice of Hearing stating the time and place of the hearing was sent to Defendant's immigration attorney. Notice Hr'g, ECF No. 20-6.

On August 15, 2008, Defendant's immigration attorney filed a Motion to Withdraw as Counsel of Record ("Motion to Withdraw"). ECF No. 20-4. In the Motion to Withdraw, Defendant's immigration attorney stated that he had "informed [Defendant] of this hearing in writing and in person and ha[d] warned him of the consequences of failing to appear." Id. at 3. The Motion to Withdraw was granted by an Order of August 20, 2008. ECF No. 20-5.

II.

At the April 30, 2019 hearing, the court heard testimony from Defendant's immigration attorney, Mr. Hugo Valverde. Mr. Valverde testified that the Motion to Withdraw reflected that he had informed Defendant of the September 11, 2008 hearing in writing and in person and had warned Defendant of the consequences of failing to appear. The United States requested Mr. Valverde produce the letter that Mr. Valverde had sent to Defendant informing him of the September 11, 2008 hearing.²

Mr. Valverde asserted that attorney-client privilege applied to the letter. The court ordered Mr. Valverde to produce the letter for in camera review. Although almost all the letter is in Spanish, a portion of the letter clearly states the date, time, and location of the September 11, 2008 hearing. Gov't's Ex. 2. The United States and Defendant agreed that "[c]ommunications between attorney and client to inform the client of a court appearance are not privileged communications." United States v. Savage, No. 86-5618, 1987 WL 37528, at *2 (4th Cir. May 20, 1987) (citations omitted) ("The attorney is acting as a conduit of information for the court, not providing confidential legal advice. [The attorney's] statement related to whether [the client] had notice of the bond hearing-it did not disclose confidential information."). Accordingly, the court overruled Mr. Valverde's assertion of privilege as to the portion of the letter informing Defendant of the September 11, 2008 hearing.³

Defendant objected to admission of the entire letter on the basis that the remaining portion of the letter may contain privileged information. Without a certified English translation of the remaining portion of the letter, which is in Spanish, the court could not rule on Mr. Valverde's assertion of privilege over that portion of the letter and Defendant's objection to its admission. Thus, the court redacted the remaining portion of the letter and admitted the redacted version of the letter as Government's Exhibit 2. Mr. Valverde and Ms. Carola Green, Defendant's Interpreter, then each read all but the redacted portion of the letter into the record in English, confirming that Mr. Valverde provided Defendant with written notice of the date, time, and location of the September 11, 2008 hearing.

Nevertheless, on September 11, 2008, Defendant failed to appear for his hearing, and the immigration judge ordered Defendant removed in absentia. Removal Order, ECF No. 20-2. Defendant was removed on July 30, 2010. R. Deportable/Inadmissible Alien at 2, ECF No. 15-9. Defendant subsequently re-entered the United States and was again removed on February 18, 2013, pursuant to the September 11, 2008 Removal Order. Id.

On April 26, 2018, the Chesapeake, Virginia, Police Department arrested Defendant in connection with multiple hit and runs, and he was convicted on two felony counts in state court. State Sentencing Order, ECF No. 15-2 at 9. The single-count Indictment filed in this court charges Defendant with Unlawful Reentry after Deportation or Removal, in violation of 8 U.S.C. § 1326(a). ECF No. 1. The Indictment alleges that Defendant was found in the Eastern District of Virginia on or about April 26, 2018, after having been previously removed from the United States on or about July 30, 2010, at or near Hidalgo, Texas. Id.

III.

In the instant Motion, Defendant contends that because the Notice to Appear failed to include the location of the removal proceeding, the immigration court lacked jurisdiction to order Defendant's removal in 2008. Mot. at 11. Defendant further contends that because the immigration court lacked jurisdiction to order his removal, the Removal Order is void, and the current indictment in this court should be dismissed because Defendant has not re-entered the United States following the entry of a valid Removal Order. Id. "Because a deportation order is an element of the offense of illegal reentry, the Supreme Court has recognized that an alien can collaterally attack the propriety of the original deportation order in the later criminal proceeding." United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005) (citing United States v. Mendoza-Lopez, 481 U.S. 828, 838–39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) ).

Defendant's Motion first asserts that the defect in the Notice to Appear and the immigration court's lack of jurisdiction satisfy the requirements of 8 U.S.C. § 1326(d) and permit him to challenge the Removal Order. Mot. at 14. Then, to challenge whether the Removal...