United States v. Cruz-Candela

          MEMORANDUM OPINION

          PETER J. MESSITTE, UNITED STATES DISTRICT JUDGE.

         Nicolas 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         Cruz-Candela 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.

         Cruz-Candela 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.^[1] 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 question.^[2]

         The IJ 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.

         The IJ 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.

         The IJ then told the group about the availability of certain forms of relief, one of which - voluntary departure as opposed to deportation^[3]-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.

         Finally, 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 3:09-3:50.^[4]

         Accordingly, 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.

         He is challenging the original Order of Removal which, if successful, would also invalidate its subsequent iterations.

         II. LEGAL STANDARD

         Under 8 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).

         To 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 (2006).

         The 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.^[5] Narine v. Holder, 559 F.3d 246, 249-50 (4th Cir. 2009).

         III. ANALYSIS

         Cruz-Candela 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 reentry.

         Cruz-Candela 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 ...