United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
DISMISS INDICTMENT 
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
Arias-Orosco ("Arias") allegedly sought entry into
the United States on four separate occasions in April 2000.
ECF 1, PgID 2-3. Federal agents arrested Arias each of the
first three times and granted her a voluntary return to
Mexico. Id. at 2. On April 23, 2000, Arias attempted
a fourth entry but agents arrested her again. Rather than
grant her another voluntary return to Mexico, the Immigration
and Naturalization Service ("INS") opted for an
expedited removal of Arias. Id. at 3. Once
apprehended, Arias admitted that she was a citizen of Mexico
and that she had sought admission with "[a] permit that
[she] bought in Juarez." ECF 19-2, PgID 72. She admitted
that the document was counterfeit. Id. Arias further
expressed no concerns about returning to Mexico, id.
at 74, and she was deported later that day.
between April 23, 2000 and June 23, 2017, Arias unlawfully
reentered the United States. Immigration and Customs
Enforcement ("ICE") agents arrested Arias on June
23, 2017. ECF 1, PgID 3. On July 11, 2017, a grand jury
returned an indictment against Arias on one count of
"Unlawful Re-entry in violation of 8 U.S.C. §
1326(a)." ECF 14, PgID 39.
filed a motion to dismiss the indictment on August 8, 2017.
ECF 19. Arias alleged that the 2000 Order of Expedited
Removal dated April 23, 2000 violated her due process rights
because she had timely retracted her false statements,
id. at 62, the expedited removal prejudiced her,
id. at 64, and that she was unlawfully prohibited
from seeking judicial review of the decision, id. at
charging document need contain only "a plain, concise,
and definite written statement of the essential facts
constituting the offense charged." Fed. R. Crim. P.
7(c)(1). On a motion to dismiss, the Court tests "the
indictment solely on the basis of the allegations made on its
face, and such allegations are taken to be true."
United States v. Reitmeyer, 356 F.3d 1313, 1316-17
(10th Cir. 2004); see also United States v. Landham,
251 F.3d 1072, 1080 (6th Cir. 2001) ("courts evaluating
motions to dismiss do not evaluate the evidence upon which
the indictment is based"). An indictment is adequate
"if it (1) includes the elements of the offense intended
to be charged, (2) notifies the defendant of 'what he
must be prepared to meet, ' and (3) allows the defendant
to invoke a former conviction or acquittal in the event of a
subsequent prosecution." United States v. Cor-Bon
Custom Bullet Co., 287 F.3d 576, 579 (6th Cir. 2002)
(quoting Russell v. United States, 369 U.S. 749,
original indictment charges Arias with unlawful reentry. ECF
1. An alien previously removed or deported from the United
States and who thereafter reenters the United States without
the express consent of the Attorney General is liable for
unlawful reentry. 8 U.S.C. § 1326(a). Collateral attack
of the previous deportation order is available. An alien
collaterally attacking the underlying deportation order must
demonstrate: (1) exhaustion of administrative remedies, (2)
improper deprivation of the alien's opportunity for
judicial review, and (3) the fundamental unfairness of the
previous deportation order. 8 U.S.C. § 1326(d).
collaterally attacks the previous deportation order with two
arguments: first, the Act improperly prohibits judicial
review; and, second, the proceeding was fundamentally unfair.
collaterally attacking a previous detention order must show
that the "deportation proceedings at which the order was
issued improperly deprived the alien of the opportunity for
judicial review[.]" 8 U.S.C. § 1326(d)(2). Under
§ 1225(b)(1), an immigration officer "shall order
the alien removed from the United States without further
hearing or review" if the alien is inadmissible due to
willful misrepresentation, 8 U.S.C. § 1182(a)(6)(C), or
for failure to procure proper documentation, 8 U.S.C. §
1182(a)(7). 8 U.S.C. § 1225(b)(1)(A)(i). Aliens applying
for asylum or fearing persecution in their home country
qualify for either administrative of judicial review.
expedited removal under § 1225(b)(1) is not subject to
judicial review. 8 U.S.C. § 1252(a)(2)(i). An exception
exists, however, for aliens to file "constitutional
claims or questions of law raised upon a petition for review
filed with an appropriate court of appeals in accordance with
this section." 8 U.S.C. § 1252(a)(2)(D); see
also United States v. Romero-Caspeta, No. 12-20376, 2012
WL 4867708, at *5 (E.D. Mich. Oct. 15, 2012) (finding an
alien had the opportunity to seek judicial review despite
being removed within 24 hours of attempted reentry).
Arias had the opportunity to raise her constitutional claims
or questions of law related to any due process violations.
There is no evidence that she availed herself of judicial
review of the due process considerations of the 2000 Order of
Expedited Removal. There is no need for the Court to address
the defendant's fundamental fairness argument since Arias
fails to satisfy the § 1326(d) standard for collateral
attack on the previous order.
it is hereby ORDERED that Defendant's
motion to dismiss the ...