United States District Court, E.D. Michigan, Southern Division
Steven Whalen Mag. Judge
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
DISMISS INFORMATION 
E. LEVY United States District Judge
Ivan Roque-Cerda is charged with unlawful reentry under 8
U.S.C. § 1326(a). On August 27, 2019, he filed a Motion
to Dismiss Information in which he challenges the validity of
his expedited removal order from 2006 that serves as the
basis for his § 1326(a) charge. (ECF No. 15.)
Roque-Cerda relies on 8 U.S.C. § 1326(d) to collaterally
attack that order. He contends that the order is
fundamentally unfair because three defects in his 2006
expedited removal proceedings constitute due process
violations and as a result he experienced prejudice. On
October 30, 2019 and November 26, 2019, the Court held
hearings, took testimony, and heard oral argument on
Roque-Cerda's motion. For the reasons set forth below,
Roque-Cerda has not demonstrated that the expedited removal
proceedings violated his due process rights in such a way
that caused prejudice. His motion to dismiss is therefore
is thirty-six years old. He is a citizen of Mexico. (ECF No.
19, PageID.47.) Prior to his arrest by Customs and Border
Protection (CBP) agents in June 2019, Roque-Cerda resided in
Michigan with his wife and five children. His wife is a
Lawful Permanent Resident; in 2006, she filed a petition
under INA § 203(a)(2)(A) for a visa for Roque-Cerda as
the spouse of an LPR. (ECF No.15-3, PageID.37.). All five of
Roque-Cerda's children are United States citizens. (ECF
No. 17, PageID.40.)
the past sixteen years, Roque-Cerda has encountered U.S.
immigration officials at least six times. This case involves
two of those encounters: the expedited removal proceedings
from 2006 and the 2019 arrest that led to the charge in this
September 29, 2006, Roque-Cerda was discovered at the San
Ysidro, California Port of Entry attempting to cross the
border concealed in the back of a vehicle. (ECF No. 15,
PageID.24.) On September 30, 2006, he underwent expedited
removal proceedings. Id. CBP Officer Michael Tuttle
conducted the proceedings and acted as the language
interpreter. Id. Officer Tuttle questioned
Roque-Cerda and prepared a two-page Record of Sworn Statement
and a one-page Jurat for Record of Sworn Statement.
Id. Roque-Cerda's name appears on both
documents. Id. The Record of Sworn Statement
includes a series of questions about Roque-Cerda's
presence in the United States:
Q: On what day did you attempt to come enter [sic] the United
A: Last night
Q: How did you attempt to enter the United States?
A: I was hiding in a vehicle
Q: Did you present any document to the officer in order to
enter the United States?
Q: How much did you pay or were going to pay to be brought
across the border in this manner?
A: My brother told me he was going to pay about $200.00.
(ECF No. 15-1, PageID.35.) Roque-Cerda then stated that he
reentered the United States to find work and rejoin his
family in Pontiac, Michigan. Id.
one-page Jurat for Record of Sworn Statement indicates that
Roque-Cerda did not wish to add anything to the Sworn
Q: Do you have any questions or is there anything else you
would like to add?
(ECF No. 15-2, PageID.36.)
Tuttle served Roque-Cerda with a Notice and Order of
Expedited Removal pursuant to 8 U.S.C. § 1225(b). (ECF
No. 19-2, PageID.66.) Roque-Cerda received a “Notice to
Alien Ordered Removed/Departure Verification, ” which
he signed and finger-printed. (ECF No. 19-3, PageID.67.) On
September 30, 2006, Roque-Cerda returned to Mexico on foot.
(ECF No. 19, PageID.48.)
6, 2019, ICE agents arrested Roque-Cerda in Macomb, Michigan
after a brief foot-chase. (ECF No. 19, PageID.49.) On June
17, 2019, Roque-Cerda was charged with unlawful re-entry
under 8 U.S.C. § 1326. (ECF No. 1.) On June 24, 2019,
the United States filed the Information in this case. (ECF
No. 9.) The Information lists Roque-Cerda's September 30,
2006 expedited removal order as the predicate immigration
offense satisfying the elements of 8 U.S.C. § 1326(a).
(Id. at PageID.13.)
August 27, 2019, Roque-Cerda moved to dismiss the
Information. (ECF No. 15.)
Rule of Criminal Procedure 12(b)(1) permits parties 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). A collateral attack
under 8 U.S.C. § 1326(d) is such an issue. See
United States v. Garcia-Echaverria, 374 F.3d 440, 445
(6th Cir. 2004).
noncitizen charged with illegal reentry under 8 U.S.C.
1326(a) may only challenge an underlying removal order if
they can show that “(1) the [noncitizen] 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
[noncitizen] of the opportunity for judicial review; and (3)
the entry of the order was fundamentally unfair.”
United States v. Estrada, 876 F.3d 885, 887 (6th
Cir. 2017) (quoting § 1326(d)). As the Sixth Circuit
explains, “[t]o prove the fundamental unfairness of an
underlying deportation order, a defendant must show both a
due process violation emanating from defects in the
underlying deportation proceeding and resulting
prejudice.” Id. The noncitizen bears the
burden of demonstrating a due process violation and