United States District Court, D. Maryland
MEMORANDUM OPINION AND ORDER
XINIS, UNITED STATES DISTRICT JUDGE
before the Court is Defendant Alejandrina Del Carmen Parada
De Diaz' Motion to Dismiss the Indictment charging her
with reentry after deportation in violation of 8 U.S.C.
§ 1326 (1996). In it, Parada De Diaz argues that the
Immigration Court lacked jurisdiction to remove her, thus
invalidating the current criminal charge. For the following
reasons, the Court DENIES the motion.
December 16, 2006, the day after Parada De Diaz arrived in
the United States, she was arrested by U.S. Border Patrol and
personally served with a Notice to Appear before an
Immigration Judge at a date and time to be further
“set.” ECF No. 12-2 at 2. On the same day, Parada
De Diaz also received a Form I-826 Notice of Rights and
Request for Disposition. ECF No. 14-2. The I-826 form was
presented in English and read to Parada De Diaz in Spanish.
It notified her that she has been arrested on suspicion that
she is present in the United States without legal authority,
and that she had the right to either proceed by way of
hearing, or waive the hearing, admit that she is in the
United States illegally, and request return to her country of
citizenship “as soon as possible.” Id.
Parada De Diaz indicated, by checking a box and initialing
alongside the box, that she admitted she was in the United
States illegally, that she did not believe she would face
harm if returned to her country, and that she wished to give
up her right to a hearing before an Immigration Judge and
return to her home country as soon as arrangements can be
made to facilitate her return. Id.
December 16, Parada De Diaz signed an identical notice
included within Form I-848 A, entitled Request for
Disposition of Salvadorans. ECF No. 14-4. This notice was
presented to Parada De Diaz in English and in Spanish. On
this form, an immigration officer indicated, by way of a
checked box, that Parada De Diaz had read the form.
Id. Parada De Diaz also checked the box next to the
Spanish version of the following language, which stated in
I admit that I am in the United States illegally. I wish to
give up my right to a hearing before an immigration judge and
return to my home country on the first available
transportation. I understand that I may be held in detention
until my departure. I also understand that if the United
States government pays for my transportation to my country, I
cannot return for five years unless I obtain permission from
the Attorney General of the United States.
De Diaz signed this form and dated it “12/16/06
22:04.” Id. An immigration officer witnessed
her signature, as indicated by the officer's own
signature over the line entitled “witness.”
days later, while in immigration custody, Parada De Diaz was
personally served a Notice of Hearing regarding her removal
proceedings. ECF No. 14-5. The Notice informed Parada De Diaz
that her hearing would take place that same day, December 18,
2006, at 2:00 p.m. Id. Parada De Diaz thereafter
appeared before the Immigration Judge, and consistent with
her written waiver, was ordered deported. ECF No. 14-6. The
written Order of deportation memorializes that Parada De Diaz
had waived her right to appeal the Order, and that Parada De
Diaz' request for voluntary departure was denied.
Id. Parada De Diaz was subsequently deported.
2018, Parada De Diaz was found in the United States after
having sustained criminal convictions for assault and traffic
offenses. ECF No. 14 at 4-5. The United States charged Parada
De Diaz with one count of Reentry of a Removed Alien, in
violation of 8 U.S.C. § 1326(a). Parada De Diaz now
moves to dismiss the charge pending against her, contending
that because her 2006 Notice to Appear did not set the date
and time of her removal hearing, the Immigration Judge
“lacked jurisdiction to issue a removal order.”
ECF No. 12 at 6. Consequently, says Parada De Diaz, dismissal
of the current indictment is warranted. For the following
reasons, the Court disagrees and denies the motion.
U.S.C. § 1326 provides a mechanism to seek dismissal of
a criminal reentry charge where a defendant has satisfied
(1) the defendant exhausted available administrative
(2) the defendant was deprived of the opportunity for
judicial review at his ...