United States v. Salinas

1

UNITED STATES OF AMERICA v. ANAEL SALINAS, Defendant.

No. 1:22-cr-00467-NLH

United States District Court, D. New Jersey

October 12, 2022

LORI M. KOCH, Counsel for Defendant

ANDREW B. JOHNS, Counsel for the United States

OPINION

NOEL L. HILLMAN, U.S.D.J.

Before the Court is Anael Salinas's (“Defendant”) Motion to Dismiss the Information filed against him after he waived his right to indictment. (ECF 40). For the reasons expressed below, Defendant's motion will be denied.

Background

Defendant was born in 1976 in San Vincente, El Salvador and first crossed into the United States in 1996. (ECF 40-1 at 3).

He went to North Carolina to work with his brother in construction. (Id.) On October 31, 2002, Defendant was convicted in the North Carolina General Court of Justice for the offenses of Trafficking Cocaine-Possession and Conspiracy to Traffic in Cocaine-Possession, in violation of N.C. Gen. Stat. Ann. §§ 90-95(h) and 90-95(i). (Id.) Unlike federal law which requires the government to prove intent to distribute regardless of the amount of drugs seized, North Carolina law, at least at the time of Defendant's conviction, created a form of statutory presumption that possession of an amount of drugs over a certain amount established an intent to traffic in those drugs. See N.C. Gen. Stat. Ann. §§ 90-95(h)(3) (terming possession over a certain amount of cocaine as “trafficking in cocaine”).

On February 7, 2003, Defendant received a Notice of Intent to Issue a Final Administrative Removal Order (the “2003 Notice”), and was interviewed by a U.S. Immigration Agent in conjunction with the 2003 Notice. (Id. at 3). It is undisputed that the 2003 Notice was translated for the Defendant into Spanish during the interview and the Immigration Agent attested to that fact on the form. (ECF 40-1 at 3; ECF 41 at 2). The 2003 Notice stated that the Defendant would not receive a hearing before an Immigration Judge because it had been determined that his convictions in North Carolina were aggravated felonies under 8 U.S.C. § 1101(a)(43)(B). (ECF 41 at 2).

The 2003 Notice further informed Defendant on the front of the form, as explained to him in Spanish, that he had two appellate rights as follows: a) he had 10 days to respond to the administrative charge in writing to the “United States Department of Justice, Immigration and Naturalization Service” at an “ICE” address in Atlanta Georgia from where Defendant was ultimately deported;^[1] and b) he had a separate right to seek judicial review within 14 days of entry of the final administrative removal order that would be filed against him later. (Id.; ECF 40-2 at 14).

On the back of the 2003 Notice is a lined-off section entitled “I Wish to Contest and/or Request Withholding of Removal” with boxes that could be checked. (ECF 40-2 at 14). The grounds for an administrative appeal are limited but one of them is “I was not convicted for the criminal offense described in allegation number 6 above[.]” (Id.) Allegation number 6 references an INS form “I-831” which has not been provided to the Court. (Id. at 13). Directly below that, however, under the heading “Charge:” Defendant's offense is described as “an aggravated felony as defined in 8 U.S.C. 1101(a)(43)(B)” a determination Defendant now challenges almost 20 years later. (Id.)

If Defendant believed in 2003 that he was not convicted of an offense that qualified as an aggravated felony under the relevant statute he had every opportunity to file an administrative appeal of that determination. Yet, it is undisputed that Defendant did not file an administrative appeal of the 2003 Notice within 10 days or at any time thereafter. The lined-off section on the back of the form, designed to facilitate a notice of appeal, is left blank, and the Immigration Agents signed at attestation that the Defendant refused to sign the form acknowledging that he had received it. (Id. at 14).

Over the next approximately two years, Defendant unsuccessfully appealed his North Carolina conviction and served his state sentence subject to an immigration detainer. State v. Valladares, 165 N.C.App. 598, 608, 599 S.E.2d 79, 87, writ denied, review denied, appeal dismissed, 359 N.C. 196, 608 S.E.2d 67 (2004) (opinion on Defendant's appeal of his conviction).

Defendant's felony conviction also had a negative effect on his Application for Temporary Protected Status and I-765 Application for Employment Authorization he had filed on October 24, 2001. (ECF 40-2 at 5). On October 18, 2004, the Department of Homeland Security (“DHS”) sent Defendant a written “Notice of Decision to Deny” those applications based upon his conviction and advised the Defendant of his right to appeal that decision within 30 days and the process for doing so. (Id.) As with the 2003 notice, Defendant did not appeal that decision within required time (30 days) or any time thereafter.

On June 10, 2005, a Final Administrative Removal Order was entered against the Defendant (“Final Order”). (ECF 41 at 3). On July 13, 2005, DHS prepared a warrant of removal based on the Final Order. (Id.) An ICE Field Office Director deemed Defendant deportable pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act (the “INA”). (ECF 40-1 at 3-4). On July 15, 2005, Defendant received either the original or a second copy of the partially filled out 2003 Notice (“2005 Notice”) as well as a copy of the Final Order. (Id. at 4). Unlike the first time the same form was presented to him in 2003, there is no written evidence that the documents were translated for him into Spanish and Defendant denies that it was translated the second time he saw the INS form I-851. (Id.)

At that time, Defendant signed another lined-off section of the form directly under the section left blank for an administrative appeal, this one entitled: “I Do Not Wish to Contest or Request Withholding of Removal.” (ECF 40-2 at 14). A checked box indicates the Defendant admitted the charges in the 2005 Notice, that he was deportable, and that he was not eligible for relief. (Id.) The same box also indicated that the Defendant waived his right to appeal, waived a 14-day stay of the Order presumably to perfect an appeal, and expressed a desire to be deported to his home country of El Salvador. (Id.)

Notably, and in contrast to the 2005 Notice, on the Final Order itself, presented to Defendant on July 15, 2005, a box was checked that Defendant reserved his right to petition for review. (Id. at 45) Defendant does not contest that he reserved that right when he was presented with the Final Order. (ECF 40-3 at 3). (Id.) The same reservation of right to appeal was indicated on a Quality Assurance Worksheet (the “Worksheet”) prepared by DHS Officers on July 13, 2005. (ECF 40-2 at 29). Although the Final Order and the Worksheet are in conflict with the 2005 Notice, the fact that they reflect a desire of the Defendant to contest his deportation at that time is some evidence that Defendant, who claims not to understand English, was able to communicate his desire to appeal his deportation at the time the process was at its end.

Despite being notified in Spanish of his right to seek judicial review of a final order when he was presented with the 2003 Notice and despite reserving his right to seek such review of the Final Order when advised of the right again on July 15, 2005 as evidenced on the Final Order itself, and despite expressing at least orally a desire to seek review of the Final Order, Defendant did not seek judicial review of the Final Order within 14 days or, for that matter, any time thereafter. On August 13, 2005, roughly one month after receiving the Final Order, and fifteen days after his right to seek judicial review expired, Defendant was deported from the United States to El Salvador, the country he expressed a desire to return to. (ECF 41 at 3).

Over fifteen years later, on November 20, 2020, Defendant was encountered by DHS officers outside a pharmacy in Harrison Township, Gloucester County, New Jersey and that encounter serves as the basis of the instant prosecution. (Id. at 4). The Government originally filed a criminal complaint against Defendant on January 6, 2021 for illegal reentry into the United States in violation of 8 U.S.C. §§ 1326(a) and (b)(2). (ECF 1).

On July 11, 2022, the Government superseded the criminal complaint with an information (the “Information”) also for violation of 8 U.S.C. §§ 1326(a) and (b)(2).^[2] (ECF 35). Thereafter, on July 25, 2022, Defendant filed the instant Motion to Dismiss the Information. (ECF 40). The Government filed a response in opposition on August 5, 2022, (ECF 41), and Defendant filed a reply in further support of his motion on August 29, 2022. (ECF 43).

On September 20, 2022, the Court held a hearing on the motion.^[3] (ECF 44). Defendant's collateral attack on the Information is based on the contentions that: (1) the INS/ICE officials erroneously concluded that his North Carolina conviction was an aggravated felony; and (2) that his waiver of an appeal was not knowing and intelligently made because he was not advised of his rights in Spanish. (See generally ECF 40).

The Court renders its decision today against this factual backdrop.

A. Legal Framework

Title 8, U.S.C. § 1326(d) allows a criminal defendant charged with illegal reentry to collaterally attack the underlying deportation order that serves as the basis of the criminal prosecution if he demonstrates three things: “(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...