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United States v. Ferman

United States District Court, D. New Mexico

January 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
EMANUEL FERMAN, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court upon Defendant's Motion to Dismiss (Doc. 27), filed October 9, 2018, and Supplement to Motion to Dismiss (Doc. 28), filed October 17, 2018 (collectively “Motions to Dismiss”). On October 29, 2018, in accordance with 28 U.S.C. § 636(b)(1)(B), these motions were referred to United States Magistrate Judge Kevin R. Sweazea to conduct any necessary hearings and recommend an ultimate disposition. See Order of Reference, ECF No. 30. Judge Sweazea heard the matter on November 28, 2018, and, having considered the parties' briefing and oral argument, the undersigned recommends that the Court DENY Defendant's Motions to Dismiss.

         Introduction and Background

         This case has its inception in deportation proceedings which commenced in November 2004. The relevant timeline is as follows.

September 17, 1990: Defendant is convicted of Burglary of a Vehicle (Texas Penal Code 30.04). (Doc. 31-1, pp. 1-2).
October 8, 2004: Defendant is convicted of Sexual Assault (Texas Penal Code 22.011). (Doc. 31-1, pp. 3-4). Shortly after his conviction, Defendant is transferred to an immigration detention facility on the ground that he is subject to removal for being convicted of an aggravated felony for which the term of imprisonment ordered is at least one year. (Doc. 31, p.3).
November 1, 2004: Defendant received a Notice to Appear (“NTA”) and Notice of Rights and Request for Disposition. In the date and time fields for the hearing, the NTA indicates “date to be set” and “time to be set.” (Doc. 31-2, pp. 1-3).
November 9, 2004: Defendant received a Notice of Hearing indicating that the removal hearing was set for November 10, 2004 at 8:30 a.m. (Doc. 31-2, p. 4).
November 10, 2004: Defendant appeared at the November 10, 2004 hearing. The hearing was rescheduled for November 16, 2004 at 10:00 a.m. Defendant received the Notice of Hearing for the November 16, 2004 hearing. (Doc. 31-3, p. 1).
November 11, 2004: Marcela Garcia entered a notice of appearance (as an accredited representative with the United Neighborhood Organization) on behalf of Defendant. Defendant signed the notice of appearance. (Doc. 38, Ex. A).
November 12, 2004: Defendant's burglary conviction was added to Defendant's charges via a document titled Additional Charges of Inadmissibility/Deportability. The document alleges that Defendant is deportable because he has been convicted of two or more crimes involving moral turpitude. (Doc. 31-3, pp. 3-4).

         On November 16, 2004, Defendant appeared, in custody, before an immigration judge (“IJ”) for his deportation hearing. (Doc. 47-1, Ex. 1). At the hearing, Defendant was represented by attorney Jose Moreno who entered his appearance in place of Marcela Garcia. (Id.). At the conclusion of the hearing, Defendant, through counsel, conceded to deportability and waived his right to an appeal. (Id.). Consequently, Defendant was ordered removed from the United States to Mexico. That same day, Defendant left the United States, on foot, and returned to Mexico. (Doc. 31-4).

         On March 18, 2012, Defendant reentered the United States and was subsequently arrested. Defendant was charged with illegal reentry on April 11, 2012, and, on April 4, 2013, he was sentenced to sixty-four months in prison followed by three years of supervised release. (Doc. 1, p. 2; Doc. 31-5, pp. 2-3). On November 16, 2016, following his prison term, Defendant was removed from the United States for the second time. (Doc. 1, p.2). On or about June 22, 2018, Defendant, again, reentered the United States and, on August 22, 2018, he was indicted on one count of Reentry of a Removed Alien in violation of 8 U.S.C. §§ 1326(a) and (b). (Doc. 19). Defendant now asks the Court to dismiss his August 22, 2018 Indictment, arguing that his 2004 order of deportation is invalid.

         Analysis

         The statutory framework for challenging a prior order of deportation in a prosecution for Reentry of a Removed Alien is found in 8 U.S.C. § 1326(d) which provides:

(d) Limitation on collateral attack on underlying deportation order In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) unless the alien demonstrates that--
(1) the alien 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 the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally ...

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