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United States v. Perez-Lopez

United States District Court, E.D. Kentucky, Northern Division, Covington

April 27, 2018



          David L. Banning, United States District Judge

         This matter is before the Court on Defendant Pedro Perez-Lopez a/k/a Juan Aguilar's Motion to Dismiss the Indictment charging him with illegal re-entry into the United States. (Doc. # 20). Defendant argues that his previous removal order-which serves as a predicate for this criminal action-was fundamentally unfair, and so this action must be dismissed. For the reasons below, Defendant's Motion will be denied.


         In early August 2012, Defendant entered the United States on foot. (Doc. # 20-2 at 5). After more than a week of walking, Defendant was picked up by United States immigration officers in Arizona. Id.; see also Doc. # 20-4. Defendant identified himself to the United States agents as Pedro Perez-Lopez, from Mexico, when in fact his name is Juan Aguilar and he is from Guatemala. Id. Defendant alleges he fabricated these facts with the intent to avoid being returned to Guatemala. Id.

         According to Defendant, he was questioned by immigration officers, and forced by an immigration officer to sign documents, so that he “could be released in a few hours or the next day.” Id. Defendant alleges that the officer did not read him the documents in Spanish, and that he does not read English. Id. Defendant further alleges that the officer did not tell him he was applying for admission to the United States, that he could withdraw his application for admission, or that he was being charged with any wrongdoing. Id. at 6. Instead, Defendant claims that he expected to simply be sent back to Mexico. Id. at 6-7. Nevertheless, Defendant was determined to be inadmissible and was subjected to expedited removal. (Doc. # 20-7). Defendant was returned to Mexico a few days after he was detained. (Doc. # 20-1 at 7).

         On December 6, 2017, a deportation officer associated with the Immigration and Customs Enforcement, Enforcement and Removal Operations (ERO) went to a residence in Covington, Kentucky, to locate a previously removed alien associated with the address. (Doc. # 1-3 at 2). Believing that they had located the previously removed alien, the ERO agents conducted a vehicular stop on a man who had exited the residence. Id. However, the man arrested was in fact the Defendant, who handed the officers a Guatemalan identification card with the name Juan Aguilar-Aguilar, and admitted in Spanish that he was not in the United States lawfully. Id.

         Defendant was taken into custody, fingerprinted, and processed at the Boone County Jail. Id. His fingerprints were run on the ENFORCE/IDENT system, and it was discovered that he had been previously stopped by Border Patrol Agents near Sasabe, Arizona. Id. at 2-3. At the time, he had given the agents the name Pedro Perez-Lopez, and had been served with an Expedited Order of Removal. Id. at 3. The ERO officers also ran Defendant's names through national databases to determine if he had filed or submitted any application for lawful entry into the United States. Id. No such applications were found. Id.

         On December 21, 2017, a federal criminal complaint was filed against Defendant, alleging that he had been previously removed under an Expedited Order of Removal, and had not lawfully re-entered the Unites States. (Docs. # 1, 1-2, 1-3). Defendant was subsequently indicted. (Doc. # 10). Defendant pled not guilty, and a trial date was set for March 19, 2018. (Doc. # 16).

         On February 16, 2018, Defendant filed a Motion to Dismiss the Indictment, arguing that the predicate to the current criminal charge-the previous removal action-was fundamentally unfair. (Doc. # 20). Defendant further requested an evidentiary hearing. Id. After the United States responded (Doc. # 22), and Defendant replied (Doc. # 23), the Court issued an Order requiring each party to file a supplemental memorandum addressing the applicability of United States v. Estrada, 876 F.3d 885 (6th Cir. 2017). (Doc. # 24). The parties having filed their supplemental memoranda (Docs. # 25 and 26), and the Court finding that an evidentiary hearing is unnecessary, this matter is ripe for the Court's review.

         II. ANALYSIS

         A. A defendant to a criminal charge under 8 U.S.C. § 1326 can collaterally challenge the administrative order predicate to the charge.

         In United States v. Mendoza-Lopez, 481 U.S. 828, 839 (1987), the Supreme Court “established that a collateral challenge to the use of a deportation proceeding as an element of a criminal offense must be permitted where the deportation proceeding effectively eliminates the right of the alien to obtain judicial review.” Where the violation of an alien's due-process rights[1] in the deportation proceeding “amount[s] to a complete deprivation of judicial review of the determination … [t]he Government may not … rely on those orders as reliable proof of an element of a criminal offense.” Id. at 840. Thus, a defendant charged under 8 U.S.C. § 1326 has the right to collaterally attack his removal order “before the administrative order may be used to establish conclusively an element of a criminal offense.” United States v. Galaviz-Galaviz, 91 F.3d 145, at *2 (6th Cir. 1996) (table) (citing Mendoza-Lopez, 481 U.S. at 838).

         To successfully challenge the validity of his previous deportation or removal order under 8 U.S.C. § 1326, Defendant must demonstrate that (1) “[he] exhausted any administrative remedies that may have been available to seek relief against the order”; (2) “the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review”; and (3) “the entry of the order was fundamentally unfair.” 8 U.S.C. § 1326(d)(1)-(3). To demonstrate “fundamental unfairness, ” Defendant must “show both a due process violation and that he was prejudiced by the removal proceeding. United States v. Rodriguez-Flores, No. 5:13-cr-75-KKC, 2014 WL 1744860, at *4 (E.D. Ky. May 1, 2014). “Because the requirements are conjunctive, [Defendant] must satisfy all prongs.” United States v. Estrada, 876 F.3d 885, 887 (2017), petition for cert. filed (U.S. Mar. 5, 2018) (No. 17-1233).

         B. Administrative Exhaustion ...

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