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United States v. Parada De Diaz

United States District Court, D. Maryland

July 16, 2019

UNITED STATES OFAMERICA
v.
ALEJANDRINA DEL CARMEN PARADA DE DIAZ Defendant.

          MEMORANDUM OPINION AND ORDER

          PAULA XINIS, UNITED STATES DISTRICT JUDGE

         Pending 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.

         I. Background

         On 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.

         Also on 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 full:

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.

Id.

         Parada 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.” Id.

         Two 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.

         In 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.

         II. Analysis

         8 U.S.C. § 1326 provides a mechanism to seek dismissal of a criminal reentry charge where a defendant has satisfied three prerequisites:

(1) the defendant exhausted available administrative remedies,
(2) the defendant was deprived of the opportunity for judicial review at his ...

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