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United States v. Tarango-Robles

United States District Court, D. New Mexico

April 10, 2019



          Robert C. Brack senior U.S. district judge.

         Mr. Tarango-Robles (Defendant) is charged with unlawful reentry following several prior deportations from the United States. He argues that the Court should dismiss the Indictment because his underlying removal order was invalid. In the underlying proceeding, Defendant was notified that he would be required to appear before an immigration court, was subsequently notified of the date and time of his hearing, attended the hearing with his attorney, applied unsuccessfully for voluntary departure, waived his right to appeal, and was ordered removed. He now argues that this entire sequence of events violated his due process rights because the original “Notice to Appear” (NTA) lacked specific information about the date and time of the hearing. Defendant fails to show, however, that he has met the three requirements for a successful collateral attack on his underlying removal order, and the Court will deny his motion to dismiss.

         I. Background

         On February 20, 2019, Defendant was indicted by a grand jury for “knowingly enter[ing], attempt[ing] to enter, and [being] found in the United States” after being previously deported on January 10, 2013, “in violation of 8 U.S.C. §§ 1326(a) and (b).” (Doc. 12.) Defendant was arrested on December 2, 2018, at a United States Border Patrol primary inspection checkpoint in Doña Ana County while attempting to travel to Phoenix to seek employment. (Doc. 18-3 at 3-4.) He told Border Patrol agents that he had entered the United States in June 2018 “by walking across the Rio Grande River from Mexico approximately [two] miles east from the Port of Entry in Fabens, Texas.” (Id. at 2-3.)

         Though the unlawful reentry case now before the Court is based on Defendant's prior removal in 2013, his history of involvement with the United States immigration system dates back to 2005. On July 30, 2005, Defendant was served, in person, with an NTA (notice to appear) by the United States Immigration and Naturalization Service. (See Docs. 17 at 11; 18-1 at 2.) This NTA stated that Defendant was ordered “to appear before an immigration judge of the United States Department of Justice” at the El Paso Service Processing Center, “on a date to be set at a time to be set[, ]” for removal proceedings on the charge that he unlawfully entered the United States. (See Docs. 17 at 11; 18-1 at 3.) On August 18, 2005, Defendant received a “Notice of Hearing in Removal Proceedings” from the Immigration Court, which included a specific time and date for his hearing the following month. (Doc. 17 at 12.) The notice of hearing was served to Defendant through his attorney. (See Id. at 13.)

         At his September 8, 2005 hearing, Defendant's application for voluntary departure was denied and he was ordered removed to Mexico. (Id. at 15.) He waived appeal and was deported. (Id. at 16.) Defendant subsequently unlawfully reentered the United States and was “subject to removal by reinstatement of the prior order” three times. (See Id. at 17; Doc. 18-3 at 4.) In addition to his three prior removals based on reinstatements of the 2005 removal order, Defendant has been voluntarily removed seven times. (Doc. 18-3 at 4.) One of his subsequent arrests and deportations under a reinstatement of the removal order occurred in January 2013. (Id.) That prior removal forms the basis of his illegal reentry charge currently pending before the Court. (See Doc. 12.)

         II. Legal Standard

         An individual may be found guilty of illegal reentry under 8 U.S.C. § 1326 if the United states can show both: (1) that he “has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding[, ]” and (2) thereafter, he “enter[ed], attempt[ed] to enter, or [was] at any time found in[] the United States . . . .” § 1326(a)(1)-(2). Section 1326(d), however, “permits the defendant-alien the chance to mount a collateral attack against a prior deportation order in response to an illegal reentry prosecution-but only in certain circumstances.” United States v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010). A defendant seeking to collaterally attack a prior deportation order may not do so unless he can 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). The Tenth Circuit has held “that § 1326(d) comports with the constitutional standard for due process . . . .” United States v. Rivera-Nevarez, 418 F.3d 1104, 1108 (10th Cir. 2005) (citing United States v. Wittgenstein, 163 F.3d 1164, 1170 (10th Cir. 1998)).

         III. Analysis

         Defendant begins his argument by stating, in a footnote, that “[a]s a preliminary matter, [he] maintains that he need not satisfy the § 1326(d) framework because he was never ‘removed' as a matter of law, as the [immigration judge] lacked jurisdiction over his removal proceedings.” (Doc. 17 at 3, n.2.) This argument, however, is circular and ignores the fact that § 1326(d) exists specifically to regulate the manner in which defendants may “challenge the validity of the deportation order” underlying their criminal charge. 8 U.S.C. § 1326(d). Thus, all defendants seeking to utilize the § 1326(d) framework are presumably arguing that they were not properly removed as a matter of law. If taking such a position means a defendant “need not satisfy the § 1326(d) framework[, ]” as Defendant argues, then § 1326(d) would be rendered meaningless. The Court declines to excuse Defendant from the statutory requirements for proving his underlying removal was invalid merely because he claims his underlying removal was invalid.[1] Defendant must meet each prong of the § 1326(d) framework in order to mount a successful collateral attack on the removal order that forms the basis for the Indictment. See Adame-Orozco, 607 F.3d at 651.

         A. Defendant did not exhaust his administrative remedies, nor was he deprived of the opportunity for judicial review.

         Defendant has not shown that he meets the first two prongs of the § 1326(d) framework- exhausting administrative remedies and being deprived of the opportunity for judicial review. Indeed, his only argument regarding these requirements is that he was not actually required to do either. (See Doc. 17 at 6 (“Mr. Tarango-Robles was not required to exhaust his administrative remedies or [s]eek judicial review.”).) To support this proposition, Defendant cites non-binding caselaw explaining that there is an exception to the doctrine of exhaustion-which generally requires parties to exhaust opportunities for administrative review of an agency decision before seeking judicial review-when the administrative remedies themselves would be futile or void or are “infected with fundamental procedural error.” (Id. at 7 (quoting Winterberger v. Gen. Teamsters Auto Truck Drivers & Helpers Local Union 162, 558 F.2d 923, 925 (9th Cir. 1977)).)

         However, Defendant provides no further explanation of why an administrative appeal would have been futile or why he waived appeal during his removal proceedings. Even the cases Defendant cites to support his argument, which refer to the doctrine of exhaustion generally and not the specific statutory requirement in § 1326(d), are clear that the fact a party is arguing an administrative decision was erroneous or unfounded is not enough to waive the exhaustion requirement. See, e.g., Winterberger, 558 F.2d at 925 (the “mere allegation that the administrative proceeding from which judicial relief is sought was void is insufficient to deprive a court of discretion to refuse jurisdiction of the claim pending exhaustion of available administrative remedies”); United Farm Workers of Am., AFL-CIO v. Ariz. Agr. Emp't Relations Bd., 669 F.2d 1249, 1254 (9th Cir. 1982) (the plaintiff had not “met its burden of showing that an appeal would have been useless” and “a major purpose of the exhaustion doctrine is to allow administrative agencies to correct mistakes that may have occurred in their own proceedings”).

         Defendant has not presented any argument as to why his proceeding was so fundamentally flawed that an administrative appeal would have been futile. Nor has he explained why, even if the immigration judge had lacked jurisdiction based on a deficient NTA, an administrative appeal and/or subsequent review by an Article III court could not have corrected the error. As such, the Court is not convinced that Defendant can be excused from meeting the requirements of §§ 1326(d)(1) and (2) simply because he alleges his removal proceedings were invalid. The Tenth Circuit has made it quite clear that a defendant seeking to collaterally attack his underlying removal proceeding must meet each of these three requirements. See Adame-Orozco, 607 F.3d at 651 (“once the government shows that the alien was deported while such an order was outstanding, the burden shifts to the defendant-alien, and it is he who must prove each of § 1326(d)'s elements to overcome the presumed legality of the earlier deportation order”).

         Thus, Defendant has not shown that he “exhausted any administrative remedies that may have been available to seek relief against the order[, ]” nor that “the deportation proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review . . . .” See §§ 1326(d)(1), (2). The record shows that he waived appeal during his removal proceedings. (See Doc 17 at 16.) See also United States v. Chavez-Alonzo, 431 F.3d 726, 728 (10th Cir. 2005) (“[a]n alien who knowingly waives the right to appeal an immigration judge's order of deportation fails to exhaust administrative remedies under § 1326(d)(1)” (citations omitted)). As a result, Defendant fails to meet the criteria necessary to mount a successful collateral attack on his underlying removal proceeding. Still, the Court will go on to address Defendant's arguments under the third prong of § 1326(d), because the question of what makes an underlying proceeding “fundamentally unfair” is at the heart of Defendant's motion to dismiss and a number of similar collateral attacks following the Supreme Court's recent decision regarding the adequacy of NTAs in the immigration context.

         B. Pereira does not render Defendant's underlying ...

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