United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK UNITED STATES DISTRICT JUDGE.
matter, defendant Luis Raul Barrera-Rojo seeks to dismiss the
criminal complaint against him. Mr. Barrera-Rojo, charged
with illegal re-entry after prior removal, argues that his
2003 removal from the United States to Mexico was
procedurally invalid and cannot support the criminal charge
against him. Because he cannot prove that the 2003 removal
was fundamentally unfair, the Court denies
Mr. Barrera-Rojo's motion.
October of 2003, Luis Raul Barrera-Rojo was hiding in a car
heading into the United States. (Doc. 21, Ex. B at 2.)
Without the requisite legal documentation, he nonetheless
hoped to surreptitiously enter the States to be with his wife
and daughter. (Id.) United States border authorities
caught Mr. Barrera-Rojo and informed him-in Spanish-of his
rights. (See Id. at 1.) After indicating that he
understood his rights, Mr. Barrera-Rojo voluntarily answered
the authorities' questions. (See Id. at 1-4.)
Barrera-Rojo admitted that he did not have a legal claim to
be in the United States, knew he was violating the law, and
had no fear of harm or any other concerns about being removed
back to Mexico. (Id. at 2, 4.) Consistent with his
answers, Mr. Barrera-Rojo did not seek asylum.
authorities determined that Mr. Barrera-Rojo was an
inadmissible alien under 8 U.S.C. § 1182(a)(7)(A)(i)(I)
and sent him back to Mexico pursuant to 8 U.S.C. §
1225(b)(1)(A)(i). (Doc. 21, Ex. A at 1.) Sometime later, Mr.
Barrera-Rojo returned to the United States. (See
Doc. 21 at 2.) He was caught and sent back to Mexico in May
of 2004, after his previous order of removal was reinstated.
being removed twice, Mr. Barrera-Rojo returned again to the
United States. (See id.) He was apprehended on
January 25, 2018, and charged with violating 8 U.S.C. §
1326, which penalizes an undocumented alien's re-entry
into the United States after prior removal. (See
id.) Mr. Barrera-Rojo asks this Court to dismiss the
criminal complaint, claiming that his removal in 2003 was
improper and cannot form the basis of a § 1326
violation. (See Id. at 6.)
The Court has jurisdiction to review Mr. Barrera-Rojo's
Barrera-Rojo seeks to collaterally attack his underlying 2003
removal. Section 1225(b)(1)(D) provides that in any §
1326 action, “the court shall not have jurisdiction to
hear any claim attacking the validity of an order of removal
. . . .” entered under § 1182(a)(7). 8 U.S.C.
§ 1225(b)(1)(D). The present case involves a § 1326
action, and, according to the government, Mr.
Barrera-Rojo's 2003 removal was correctly entered under
§ 1182(a)(7)(A)(i)(I). On a straightforward reading of
§ 1225(b)(1)(D), the Court appears to lack jurisdiction
over this matter.
Ninth Circuit has ruled that § 1225(b)(1)(D) is
unconstitutional to the extent that it precludes at least
some review of an order that becomes important to a
subsequent criminal sanction. See United States v.
Barajas-Alvarado, 655 F.3d 1077, 1085 (9th Cir. 2011).
The Ninth Circuit premised its ruling on the Supreme
Court's decision in United States v.
Mendoza-Lopez, 481 U.S. 828 (1987), which held that
“where a determination made in an administrative
proceeding is to play a critical role in the subsequent
imposition of a criminal sanction, there must be
some meaningful review of the administrative
proceeding.” Mendoza-Lopez, 481 U.S. at 837-38
Court agrees with the Ninth Circuit. Following
Mendoza-Lopez, a categorical prohibition of any
review of a prior removal order would violate due process
when the prior order is to be the basis of criminal
sanctions. Pursuant to 18 U.S.C. § 3231, the Court has
jurisdiction to review any removal underlying a § 1326
Mr. Barrera-Rojo cannot successfully attack his underlying
response to Mendoza-Lopez, Congress amended §
1326 to establish the standard for a successful collateral
attack on an underlying removal order. Mr. Barrera-Rojo bears
the burden of proving that (1) he exhausted any
administrative remedies, (2) the removal proceedings below
improperly deprived him of an opportunity for ...