United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
L. Banning, United States District Judge
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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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).
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
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.
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).
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.
A defendant to a criminal charge under 8 U.S.C. § 1326
can collaterally challenge the administrative order predicate
to the charge.
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 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).
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.
Administrative Exhaustion ...