United States District Court, D. Maryland
J. MESSITTE, UNITED STATES DISTRICT JUDGE.
Cruz-Candela has filed a Motion to Dismiss the Indictment
charging him with illegal reentry after a felony conviction
(ECF No. 15). He challenges the indictment on subject-matter
jurisdiction and due process grounds. For the reasons that
follow, the Court will GRANT the Motion.
FACTUAL AND PROCEDURAL HISTORY
is a native and citizen of Mexico. He apparently entered the
United States without documentation on an unknown date in
2003. ECF No. 17-1, Ex. A at 3. In May 2013, he came to the
attention of Immigration and Customs Enforcement (ICE)
officials while detained on state charges for misdemeanor
assault in North Carolina. Id. The Department of
Homeland Security issued him a “Notice to Appear”
(NTA), charging that he was subject to removal. The NTA
listed the place for Cruz-Candela's immigration hearing
(the ICE Stewart Detention Center in Lumpkin, Georgia), but
failed to specify the date or time; rather, it ordered him to
appear “on a date to be set at a time to be set.”
ECF No. 17-2.
was detained by ICE pending the decision of the Immigration
Judge (IJ) and in fact attended an immigration hearing on
July 30, 2013 along with a group of respondents-as many as
fifteen- whose cases were handled together. An audio
recording of that hearing indicates that the structure of the
proceeding consisted of the IJ asking the group several
questions and, generally, telling the group before each
question that, if an individual had an affirmative response,
he or she was to stand. The IJ would then inquire further of
any individual who stood in response to a
first advised the group of their right to have an attorney at
their own expense. ECF No. 17 Ex. E, track 2 at 1:00 to 2:31.
When the group was asked if any unrepresented respondent
wanted additional time to obtain counsel, some respondents
stood, and the IJ postponed their hearings. Cruz-Candela did
not stand. Id., Track 3 at 1:21 to 1:41 and 3:11 to
3:43. The IJ then stated that he understood that the
respondents who remained would be waiving their right to
counsel and asked for confirmation if this was the case. His
inquiry was apparently followed by an indistinguishable
verbal response from the group, which the IJ understood to
represent a response of “yes by all” (that they
were waiving their right to obtain counsel). Id.
then asked members of the group to stand “… if
you want to fight this case or believe the charge against you
is wrong in any way.” Id., Track 4 at 0:35 to
0:40. No. one stood. The IJ said he took that to mean that
everyone in the group was admitting the charge or charges
against them. In apparent response to the IJ's inquiry,
an interpreter is heard saying “yes, ” which the
IJ repeats. There were no audible responses from the group,
id, at 0:40- 1:26, Cruz-Candela included. The IJ
thereupon found all remaining respondents to be removable as
charged, based on clear and convincing evidence. Id.
then told the group about the availability of certain forms
of relief, one of which - voluntary departure as opposed to
deportation-Cruz-Candela was eligible for. The IJ told
the group that, to be eligible for voluntary departure, they
would “need money to pay for [their] own airfare”
and have a travel document. Id., Track 5 at 3:16-3:57.
the IJ asked each respondent individually whether he or she
wanted to appeal. When the IJ asked whether he wanted to
appeal instead, Cruz-Candela apparently chose to accept
deportation. Id., Track 6 at
the IJ ordered Cruz-Candela's removal, and on August 8,
2013, he was removed. Cruz-Candela appears to have re-entered
the U.S. illegally several times thereafter, since between
2014 and 2017 the Order of Removal was reinstated on at least
seven occasions. In April 2018, he was taken into custody by
ICE officials, which gave rise the present case.
challenging the original Order of Removal which, if
successful, would also invalidate its subsequent iterations.
U.S.C. § 1229(a), when immigration authorities suspect
an individual is present in the United States without
authorization, in order to initiate removal proceedings they
must serve the individual with written notice specifying,
among other things, the time and place at which the
proceedings will be held. 8 U.S.C. § 1229(g).
successfully attack an underlying deportation order, a
defendant must show that (1) he has “exhausted any
administrative remedies that may have been available to seek
relief against the [deportation] order”; (2) the
deportation proceedings “improperly deprived [him] of
the opportunity for judicial review”; and (3) the entry
of the deportation order was “fundamentally
unfair.” The fundamental unfairness prong requires a
showing both that the defendant's “due process
rights were violated by defects in his underlying deportation
proceeding” and that he “suffered prejudice as a
result of the defects.” United States v.
Wilson, 316 F.3d 506, 510 (4th Cir. 2003), abrogated on
other grounds by Lopez v. Gonzalez, 549 U.S. 47
exhaustion requirement of 1326(d)(1) is excused where a
person's failure to exhaust results from an invalid
waiver of the right to an administrative appeal. U.S. v.
Ortiz, 488 Fed.Appx. 717, 718 (4th Cir. 2012). A valid
waiver of rights must be knowing and intelligent. The
Government bears the burden of demonstrating this by at least
a preponderance of the evidence. Narine v. Holder,
559 F.3d 246, 249-50 (4th Cir. 2009).
moves to dismiss the Indictment by challenging his original
Order of Removal, and therefore all subsequent
reinstatements. Because the original removal was invalid, he
says, it cannot be the basis of the present charge of illegal
argues first that the Supreme Court's holding in
Pereira v. Sessions,138 S.Ct. 2105 (2018),
invalidates his original NTA, as a result of which the
Immigration Court lacked subject matter jurisdiction to order
him removed. Second, he argues that the removal proceeding
was fundamentally unfair- that it violated ...