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United States v. Perez-Gomez

United States District Court, M.D. Alabama, Eastern Division

November 26, 2014



MYRON H. THOMPSON, District Judge.

Defendant Delfino Perez-Gomez moved to dismiss the one-count indictment against him for unlawful reentry of a removed alien, 8 U.S.C. § 1326(a)(1), on the ground that his original removal proceeding was fundamentally unfair and deprived him of the right to judicial review. The magistrate judge entered a recommendation that the dismissal motion be denied, and Perez-Gomez objected to that recommendation. After an independent and de novo review of the record, the court entered an order last week, on November 21, 2014, overruling Perez-Gomez's objection, adopting the magistrate judge's recommendation, and denying Perez-Gomez's dismissal motion. This opinion explains the basis for that order.


Perez-Gomez is a native and citizen of Guatemala, and he is not a citizen of the United States. He first entered this country without authorization or inspection in December 2006. In January 2012, he was arrested in Lee County, Alabama for failing to pay several traffic tickets. At the county jail, he encountered federal immigration officials who discovered that he had entered the country without inspection, and they took him to an immigration detention facility.

A few days later, Perez-Gomez received a hearing before an immigration judge. The hearing was conducted by video teleconference. The immigration judge began by addressing a group of detained aliens. The judge determined that all of the aliens spoke either English or Spanish. He went on to discuss the nature of the hearing and of the aliens' procedural rights in the hearing. With regard to immigration relief, the immigration judge said:

"[I]f the court finds that you are subject to removal we will determine whether or not you are eligible for any sort of relief. That relief that might allow you to remain in the United States. If any such relief is available, we will discuss it and I will give you an opportunity to apply for it."

Transcript of Imm. Hearing, Def.'s Ex. 5 (Doc. No. 47-1) at 2 (repetitions by Spanish interpreter omitted). With regard to the aliens' right to appeal, the immigration judge said:

"At the end of the case I will make a decision. You have a right to accept my decision or if you disagree with my decision you can appeal it to a higher court of law called the Board of Immigration of Appeals. If you accept my decision and the government attorney accepts it, the decision becomes final and the case will be over. Accepting my decision also means you do not wish to appeal. If you do wish to appeal, I will tell you how to do that. I'll give you the forms, tell you where they should be sent, and etc. You have also been given a document that explains your appeal rights. Those are your rights in this deportation hearing."

Id. at 3.[1]

Before he reached Perez-Gomez, the immigration judge engaged into a colloquy with another of the detainees, as follows:

"Respondent/Interpreter: Uh, yes, I have a question... that about having money, what is that for?
"Judge: That would be for voluntary departure. But that's the first thing you need, you need to have the money to pay your ticket back to Mexico. And you told me you didn't have it. Okay?"

Id. at 18.

Some time later, the immigration judge addressed Perez-Gomez individually. The judge first engaged in a colloquy about Perez-Gomez's understanding of his rights:

"Judge: You were present when I explained your rights?
"[Perez-Gomez]: Yes.
"Judge: Do you understand your rights?
"[Perez-Gomez]: Yes.
"Judge: Would you like time to find an attorney?
"[Perez-Gomez]: No."

Id. at 25. The judge determined that Perez-Gomez was removable after he admitted that he was not a citizen or national of the United States and had come to the United States "without papers." Id. at 25-26.

The immigration judge next asked Perez-Gomez four questions, presumably to determine whether he was eligible for any form of relief: "Do you have fear of returning to Guatemala?"; "Do you have family in the United States?"; "Has anyone ever filed papers for you to get legal residence in the United States?"; and "Do you have the money immediately available to depart the United States?" Perez-Gomez answered "No" to each question. Id. at 27-28. At that point, the judge stated: "So the court finds that the government has a right to deport you because you're in the United States illegally. So I must order that you be removed from the United States to Guatemala. You accept that decision?" Id. at 27. Perez-Gomez responded affirmatively.

Perez-Gomez was removed from the United States 15 days later. He subsequently reentered the country, was apprehended by Alabama state troopers for driving under the influence, and was transferred to federal custody. The United States brought the pending criminal prosecution against him for reentering the United States after being removed.


Federal immigration law makes it a crime for an alien to be found in the United States after he "has been... deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, " unless he receives advance permission from the Attorney General. 8 U.S.C. § 1326(a)(1). Perez-Gomez argues that, in light of certain procedural defects in his 2012 removal hearing, it would violate his due-process rights for this previous order of removal to satisfy the removal element of the crime. Specifically, Perez-Gomez argues that the hearing was flawed because he was misled into believing that he was ineligible for two forms of relief: voluntary departure prior to completion of removal proceedings and voluntary departure at the conclusion of removal proceedings. If he had received either form of relief, he would not have been guilty of the crime of illegal reentry.

As discussed below, the court finds that in this case, the failure to notify Perez-Gomez of his eligibility for the two forms of voluntary departure did not render the underlying removal proceeding overall fundamentally unfair and thus did not violate his Fifth Amendment due-process rights. However, the court will address all factors should there be an appeal.

A. Vehicle for Relief

Based upon this court's reading of applicable case law, a motion to dismiss does not appear to be the proper vehicle to raise the issue before the court: whether the prior removal proceedings can be relied upon as the basis for the present felony charge. Rather, although Perez-Gomez filed this as a motion to dismiss, the motion should be construed as a motion in limine.

Admittedly, other district courts have granted defense motions to dismiss illegal reentry prosecutions where the motions challenged the deportation element of the offense under 8 U.S.C. § 1326(d). See, e.g., United States v. Copeland, 228 F.Supp.2d 267, 272 (E.D.N.Y. 2002), vacated on other grounds, 376 F.3d 61 (2d Cir. 2004); United States v. Aguirre-Tello, 181 F.Supp.2d 1298, 1307 (D.N.M. 2002), reversed on other grounds, 353 F.3d 1199 (10th Cir. 2004). Indeed, the Supreme Court itself affirmed a court order granting a defense motion to dismiss United States v. Mendoza-Lopez, 481 U.S. 828, 842 (1987).

Nevertheless, a motion to dismiss the indictment is not the appropriate vehicle for mounting a collateral attack on a deportation under § 1326(d). As a threshold matter, the holdings of other district courts have no precedential weight in this jurisdiction and are therefore persuasive authority only. And, even as persuasive authority, none of them addresses this issue. Second, and more importantly, this aspect of the Mendoza-Lopez decision is distinguishable. The Supreme Court did not determine the proper vehicle for raising a challenge to a deportation used as an element in an illegal reentry prosecution; instead, the Court focused on the constitutionality of prosecution for illegal reentry when the defendant's due-process rights had been violated in the deportation proceeding. At the trial-court level, the defendants, Jose Mendoza-Lopez and Angel Landeros-Quinones, had moved to suppress the evidence of their deportation, and the district court granted the motion and dismissed the case. See United States v. Mendoza-Lopez, 781 F.2d 111, 112 (8th Cir. 1985), aff'd, 481 U.S. 828 (1987). It is unclear when, procedurally, this dismissal occurred. The Eighth Circuit Court of Appeals affirmed the dismissal, but it did not discuss the propriety of the procedure used in the court below.

Regardless of how the Eighth Circuit handled the question, case law from the Eleventh Circuit Court of Appeals is clear: a motion challenging the sufficiency of an indictment must be analyzed without looking to the sufficiency of the evidence. The appellate court has stated: "The sufficiency of a criminal indictment is determined from its face. The indictment is sufficient if it charges in the language of the statute." United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992). Once a defendant is properly indicted, "the government is entitled to present its evidence at trial and have its sufficiency tested by a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29." United States v. Salman, 378 F.3d 1266, 1268 (11th Cir. 2004). This is because the rules do not "provide for a pre-trial determination of the sufficiency of the evidence." Critzer, 951 F.2d at 307.

Here, the indictment is sufficient. The indictment asserts that Perez-Gomez "did, being an alien, knowingly re-enter, and was found in, the United States after having been deported, without obtaining the permission of the Secretary of Homeland Security or the Attorney General of the United States...." By way of comparison, the language of the statute states, "any alien who... has been... deported... and thereafter enters... the United States, unless prior to his reembarkation at a place outside the United States of his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission...." 8 U.S.C. § 1326(a). The language of the indictment thus clearly tracks the language of the statute, meaning that a motion to dismiss is not the proper vehicle for Perez-Gomez's challenge.

Instead, the court construed Perez-Gomez's motion to dismiss as a pretrial evidentiary motion to exclude evidence of his prior deportation, i.e., as a motion in limine.[2] Regardless, however, of how it is construed, the court reaches the same conclusion.

B. Voluntary Departure

The Immigration and Nationality Act allows for a form of relief called voluntary departure, ' either prior to the completion of proceedings (and sometimes in lieu of any proceedings), see 8 U.S.C. § 1229c(a), or at the completion of proceedings, see 8 U.S.C. § 1229c(b). Perez-Gomez was clearly eligible for pre-completion voluntary departure. He may also have been eligible for post-completion voluntary departure.

Voluntary departure can be a beneficial "quid pro quo" for both the government and an alien subject to deportation. Dada v. Mukasey, 554 U.S. 1, 11 ...

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