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United States v. Miranda-Rivera

United States District Court, D. Maryland

August 30, 2016

UNITED STATES OF AMERICA
v.
VICTOR MIRANDA-RIVERA

          MEMORANDUM

          Catherine C. Blake United States District Judge

         Victor Miranda Rivera is charged by indictment with one count of illegal reentry into the United States in violation of 8 U.S.C. § 1326(a) and (b)(1). Pending before the court are (1) the defendant's motion to dismiss the indictment, (ECF No. 18), and (2) the defendant's motion to suppress tangible and derivative evidence and statements, (ECF No. 19). A motions hearing was held on August 4, 2016. For the reasons that follow, the defendant's motion to dismiss will be granted, and his motion to suppress will be denied as moot.

         BACKGROUND

         In 2006, at age 16, Mr. Miranda Rivera left his home country of El Salvador and came to the United States as an undocumented immigrant. Approximately five years later, on January 28, 2011, Mr. Miranda Rivera was detained by Immigration and Customs Enforcement (“ICE”) officials and served with a Notice to Appear in removal proceedings. Mr. Miranda Rivera appeared without counsel before an immigration judge (“IJ”) in Baltimore, Maryland via a video teleconference hearing on February 9, 2011. (Mot. Dismiss, Ex. B, Hr'g Tr., ECF No. 18-2). At that hearing, the IJ determined that Mr. Miranda Rivera was prima facie removable because he admitted to the allegations contained in the Notice to Appear. The IJ then asked questions to ascertain Mr. Miranda Rivera's eligibility for removal. During this questioning, the IJ asked Mr. Miranda Rivera if he had “any fear that you will be persecuted or tortured if you had to go back to El Salvador?” Id. at 6:17-18. Mr. Miranda Rivera replied, “Honestly my only fear is that when I was 16 years old, I was asked to join a gang and I didn't want to, so they just wanted to kill me. But I feel there's no other option. I'm just moving to another place in El Sa[l]vador. And my other concern was that my fiancé, she's three months pregnant and I just was looking for the chance to take her out of the country with me.” Id. at 6:19-25; Ltr. Re: Transcript Corr., ECF No. 28-1. The IJ then informed Mr. Miranda Rivera that, “[w]ith respect to what you told me about the gang, you know, unfortunately under our law right now, that's just not a basis for asylum. . . . It doesn't sound like that would give a basis for relief.” Id. at 7:7-15. The IJ inquired as to Mr. Miranda Rivera's interest in voluntary departure; however, due to financial constraints, Mr. Miranda Rivera declined to explore that option. Id. at 8:6-9:13. The judge issued a removal order, and Mr. Miranda Rivera was deported to El Salvador on March 7, 2011. At some point thereafter he returned to the United States. On March 17, 2016, the government filed the indictment currently under review, charging Mr. Miranda Rivera with illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(1).

         ANALYSIS

         Mr. Miranda Rivera moves to dismiss the indictment, claiming the illegal reentry charge is predicated on an invalid deportation order.[1] The Fourth Circuit recently reviewed the law governing collateral challenges to deportation orders in illegal reentry cases:

Under § 1326(d), a defendant charged with illegal reentry is permitted to collaterally attack a prior removal order. To prevail, the defendant must show that “(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.” [8 U.S.C. § 1326(d)]. Because “[t]hese requirements are listed in the conjunctive, . . . a defendant must satisfy all three in order to prevail.” United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005) (internal quotation marks omitted). When the defendant satisfies all of § 1326(d)'s requirements, the district court must dismiss the illegal reentry charge. See id.

United States v. Lopez-Collazo, 824 F.3d 453, 458 (4th Cir. 2016). Mr. Miranda-Rivera alleges that he was subject to a fundamentally unfair entry of his deportation order arising from a flawed deportation proceeding. The government contends that the 2011 deportation proceeding comported with due process and that, in any event, Mr. Miranda Rivera cannot establish prejudice because he cannot show a “reasonable likelihood” that his potential asylum claim would have been successful.

         A. Exhaustion of Administrative Remedies and Denial of Opportunity for Judicial Review

         Mr. Miranda Rivera claims there was a fundamental defect in the 2011 deportation proceeding: the IJ failed to inform him that he might be eligible for asylum and withholding of removal. This, Mr. Miranda Rivera contends, invalidates his waiver of appellate rights, thereby excusing any failure to exhaust administrative remedies and improperly depriving him of the opportunity to obtain judicial review. The government, while maintaining the deportation proceeding was not constitutionally deficient, does not contest the legal effect of an invalid waiver of appellate rights.

         As already stated by other judges in this district, an invalid waiver of appellate rights excuses the exhaustion requirements of § 1326(d)(1). See, e.g., United States v. Ramos-Ramirez, 128 F.Supp.3d 896, 899 (D. Md. 2015) (“Moreover, the exhaustion requirement of section 1326(d) must be excused when an alien's failure to exhaust results from an invalid waiver.”); United States v. Merino-Hernandez, 46 F.Supp.3d 602, 607 (D. Md. 2014) (“[T]he exhaustion requirement of § 1326(d)(1) must be excused where an alien's failure to exhaust results from an invalid waiver of the right to an administrative appeal.” (alteration in original) (citation omitted)). The same logic applies to the improper deprivation of judicial review factor under § 1326(d)(2). See Mendoza-Lopez, 481 U.S. at 840 (“The [IJ] permitted waivers of the right to appeal that were not the result of considered judgments by respondents, and failed to advise respondents properly of their eligibility to apply for suspension of deportation. Because the waivers of their rights to appeal were not considered or intelligent, respondents were deprived of judicial review of their deportation proceeding.”); United States v. Reyes-Bonilla, 671 F.3d 1036, 1043 (9th Cir. 2012) (“If Reyes did not validly waive his right of appeal, the first two requirements under § 1326(d) will be satisfied.”).

         The question, then, is whether Mr. Miranda Rivera made a valid waiver of his appellate rights. An alien's waiver of his appellate rights is invalid if it is not “knowingly and intelligently made.” Narine v. Holder, 559 F.3d 246, 249 (4th Cir. 2009) (citation omitted).[2] Mr. Miranda Rivera claims he could not have made a knowing and intelligent waiver because he waived his rights after being told by the IJ that he did not appear to be eligible for relief from deportation. For the reasons discussed below in the due process analysis, the IJ failed to provide Mr. Miranda Rivera with information she was required to provide under federal law. Because Mr. Miranda Rivera was deprived of crucial information regarding his eligibility for asylum, his waiver was not knowing and intelligent. Accordingly, the requirements of § 1326(d)(1) and (2) are satisfied.

         B. Fundamental Unfairness

         Mr. Miranda Rivera also has established that the 2011 deportation proceeding was fundamentally unfair. The Fourth Circuit applies a two-part inquiry for assessing whether the entry of a deportation order was fundamentally unfair: “To demonstrate fundamental unfairness” in the entry of the removal order, “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.” El Shami, 434 F.3d at 664 (internal ...


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