United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE
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.
case has its inception in deportation proceedings which
commenced in November 2004. The relevant timeline is as
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.
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.
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.
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
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
(3) the entry of the order was fundamentally ...