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United States v. Barrera-Rojo

United States District Court, D. New Mexico

May 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
LUIS RAUL BARRERA-ROJO, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. BRACK UNITED STATES DISTRICT JUDGE.

         In this 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.

         FACTS

         In 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.)

         Mr. 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.

         Border 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. (See id.)

         Despite 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.)

         DISCUSSION

         I. The Court has jurisdiction to review Mr. Barrera-Rojo's collateral attack.

         Mr. 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.

         The 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 (emphasis original).

         The 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 charge.

         II. Mr. Barrera-Rojo cannot successfully attack his underlying removal order.

         In response to Mendoza-Lopez, Congress amended ยง 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 ...


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