United States v. Flores-Perez

          OPINION AND ORDER DENYING DEFENDANT'S MOTIONS TO DISMISS INDICTMENT

          DAVID M. LAWSON United States District Judge.

         Defendant Noe Flores-Perez, charged with illegally reentering the United States after having been deported, has filed two motions to dismiss the single-count indictment. Both motions focus on the validity of the notice to appear that was issued to him when he was found in this country in 2001, and the ensuing removal proceedings, which were conducted without his presence. In the first motion, he argues that the removal proceedings were void from the beginning because the notice to appear did not contain a time or place for the removal hearing, and therefore the immigration court had no jurisdiction to order his removal, nullifying the removal order, which is an essential element of the crime charged in the indictment. In the second motion, filed after Flores-Perez received a more complete record of the immigration proceedings, he contends that the removal proceedings were fundamentally unfair because the immigration officials mailed the notification of the hearing time and place to him at an incorrect address, albeit one that was listed on the original notice to appear. Since he never received notice of the hearing, he reasons, he was deprived of the chance for voluntary departure. The Court heard arguments on both motions, the latter on May 16, 2019, where the defendant stated that he continued to press his jurisdictional argument, despite recent Sixth Circuit precedent that settled the issue against him. However, the second motion must be denied for the same reasons as the first, mainly because the defendant has not shown that he exhausted available administrative remedies to challenge the in absentia order of removal, and he has not shown that he was prejudiced by any procedural defect in the removal proceeding.

         I.

         Defendant Noe Flores-Perez is a citizen of Mexico who entered the United States illegally sometime before 2001. On December 19, 2001, immigration agents found him in Michigan and served him with a “notice to appear, ” which stated that he would be subjected to a removal hearing at a date and time to be determined. On January 22, 2003, after a hearing at which Flores-Perez did not appear, an immigration judge issued an order of removal. In March 2009, he again was arrested in the United States, and on March 31, 2009 he was deported.

         At some point he returned to America, and, on December 12, 2018, he was arrested again in Michigan. On January 3, 2019, he was charged in a single-count indictment with unlawfully reentering the United States after having been removed, contrary to 8 U.S.C. § 1326(a). On January 31, 2019, he filed a first motion to dismiss the indictment for failure to state an offense. After the first motion was argued and certain questions were raised about the factual basis for the defendant's position, the defendant filed a second motion to dismiss the indictment, and the government filed a response, which included as an exhibit the entire unredacted immigration agency case file for the defendant's removal proceedings. The now complete record of the removal proceedings reveals the following additional and apparently undisputed facts.

         In the original notice to appear, which was hand delivered to the defendant and signed by him, the defendant's address was recorded with the proper street number, but with an apartment No. that does not exist. The defendant submitted a partial copy of that notice to appear as an exhibit to his motion. However, the partial copy that the defendant submitted omitted the second page, which bears both the defendant's signature and the direction that the defendant was “required to provide the INS, in writing, with [his] full mailing address and telephone number, ” and that “[n]otices of hearing will be mailed to this address.”

         The defendant attested in an affidavit that he provided his identification to the arresting agents, but none of them spoke Spanish, and no interpreter was present. During his brief two-hour detention, Flores-Perez received a copy of the notice of hearing, but it was written in English, and nobody told him to check the address imprinted thereon to make sure that it was correct. The defendant resided in apartment 311 at 1231 Colony Lane, not apartment 132 as the notice recorded. Before he was released, a woman who spoke Spanish talked with the defendant and told him a notice of hearing with a date and time would be mailed to him. However, because the wrong address was recorded in the immigration file, the defendant never received any notice of the hearing, so he did not know when to appear. The defendant had no further contact with immigration authorities until he was arrested and deported in March 2009. The defendant asserts that, if he had known the date and time of the original immigration proceeding, he “would have requested voluntary departure so that [he] would not be barred from returning to the country for 10 years.”

         II.

         Flores-Perez brought both motions to dismiss under Federal Rule of Criminal Procedure 12, which allows any party to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). He cites Rule 12(b)(3)(B), which allows a defendant to move before trial to dismiss an indictment or any count of it that “fail[s] to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v).

         “‘[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.'” United States v. Anderson, 605 F.3d 404, 411 (6th Cir. 2010) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). Where the information “clearly track[s] the language of the statute, ” it sufficiently “contain[s] the elements of the offense.” Ibid. Where the charging language includes “the relevant time period and the specific event that triggered the charge, ” the defendant will “accordingly be able to adequately plead an acquittal or conviction in bar of any future prosecutions arising from the same offense, ” and the second requirement under Hamling will be met. Ibid.

         Because Rule 12(b) limits pretrial motions only to those matters that can be decided “without a trial on the merits, ” Fed. R. Crim. P. 12(b)(1), “courts [considering] motions to dismiss [an indictment for failure to state an offense] do not evaluate the evidence upon which the indictment is based.” United States v. Landham, 251 F.3d 1072, 1080 (6th Cir. 2001) (citing Costello v. United States, 350 U.S. 359, 362-63 (1956); United States v. Powell, 823 F.2d 996, 999-1001 (6th Cir. 1987); United States v. Markey, 693 F.2d 594, 596 (6th Cir. 1982)).

         A.

         The elements of the offense of illegal reentry under 8 U.S.C. § 1326(a) are that the defendant is an alien, he was denied admission or was deported or removed from the United States under an order of removal, and he attempted to reenter the United States without the express permission of the Attorney General or the Homeland Security Secretary. United States v. Hodulik, 44 Fed.Appx. 656, 660 (6th Cir. 2002) (citing United States v. Meza-Soria, 935 F.2d 166, 168 (9th Cir. 1991)); see also 8 U.S.C. § 1326(a). A defendant may mount a collateral attack on a deportation order where, as here, the order is necessary to establish an element of the offense. United States v. Mendoza-Lopez, 481 U.S. 828, 837-37 (1987).

         In his opening motion brief, the defendant argues that the order of removal is “void ab initio” because the omission of the date and time of the hearing, as required by 8 U.S.C. § 1229(a)(1)(G)(i), means that jurisdiction never vested in the immigration court. The defendant acknowledges the hurdles to collateral attacks on an order of removal in a subsequent criminal proceeding interposed by 8 U.S.C. § 1326(d), but he contends that he is not subject to those constraints because, due to the jurisdictional defect, “the order of removal . . . has no[] legal effect, ” and, thus, the defendant “is not actually collaterally attacking a removal order.” In a reply brief, the defendant acknowledges the recently issued published decision in Santos-Santos v. Barr, 917 F.3d 486 (6th Cir. 2019), which rejected the position he now advances, but he contends that the Santos-Santos decision ...