United States District Court, E.D. Michigan, Southern Division
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
...