The opinion of the court was delivered by: William Q. Hayes United States District Judge
The matter before the Court is the motion to dismiss the indictment for invalid deportation filed by the Defendant Ismael Lopez-Garcia (Doc. # 30).
On January 5, 2003, Defendant was removed from the United States pursuant to the expedited removal process in 8 U.S.C. § 1225(b)(1). The Determination of Inadmissibility found Defendant was "inadmissible to the United States under sections 212(a)...(6)(C)(i) [and] (7)(A)(i)(I) ... in that: On or about January 4, 2003, you applied for admission into the United States. You presented a Mexican Passport with a counterfeit Non-Immigrant Visa. You are a citizen and national of Mexico. You have no legal right to enter, pass through, or remain in the United States. You willfully misrepresented your true identity and are not in possession of a valid entry document as is required by the Act." (Doc. # 31, Exhibit A). In connection with the expedited removal, Defendant provided a Sworn Statement on January 5, 2003 stating that he applied for admission to enter into the United States with documents that he purchased in Mexico for $100.00 in order to go to a party; that he was a citizen of Mexico with no legal documents to enter or remain in the United States; that he understood he was being deported for a period of five years; and that he had no fear or concern about being returned to his home country. The Sworn Statement signed by the Defendant indicated on page one that the proceedings were "In the Spanish language" and stated on page three prior to Defendant's signature: "I have read (or have had read to me) this statement...." (Doc. # 31-2 at 3). On page three of the Sworn Statement, the translator signed the Certificate of Translation and checked a box which indicated that "[t]his written sworn statement ... was not read to the alien in the Spanish language, which is his/her native language or a language which he/she understands." Id.
Defendant's 2003 expedited removal was reinstated on December 12, 2007 and on November 12, 2008.
On March 25, 2009, the grand jury returned an indictment charging the Defendant with being a deported alien found in the United States in violation of Title 8, United States Code, Section 1326 (a) and (b).
Defendant moves to dismiss the indictment on the grounds that his 2003 expedited removal cannot be used as an element of a constitutional prosecution under Section 1326. Defendant asserts that 8 U.S.C. § 1225(b)(1)(D), which prohibits any claim attacking the validity of a Section 1225 removal order in a prosecution under Section 1326, directly conflicts with his rights under the due process clause of the Fifth Amendment of the United States Constitution to collaterally attack his removal order. Defendant asserts that Congress has exercised its authority in Section 1225(b)(1)(D) to strip the federal court of jurisdiction to hear any claim attacking the validity of an expedited removal, and that the constitutional requirement of due process prohibits the use of an expedited removal under Section 1225 as an element of the offense in a subsequent prosecution under Section 1326.
The Government contends that the Court lacks jurisdiction to review any challenge to the validity of the 2003 expedited removal order pursuant to Section 1225(b)(1)(D). The Government asserts that the Defendant's due process argument has no application in this case because arriving aliens subject to expedited removal have no due process rights at the time of their removal and, subsequently, will never be permitted to collaterally attack their removal. In the alternative, the Government contends that any judicial review is limited to confirming that immigration authorities complied with the procedures set out in 8 U.S.C. § 1225. The Government asserts that Defendant's expedited removal was not defective and that Defendant suffered no prejudice from any failure to comply with the regulations.
In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress provided: "In any action brought against an alien under section 1325(a) of this title or section 1326 of this title, the court shall not have jurisdiction to hear any claim attacking the validity of an order of removal entered under subparagraph (A)(i) or (B)(iii)." 8 U.S.C. § 1225(b)(1)(D).
In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the United States Supreme Court held that a defendant charged with illegal re-entry under 8 U.S.C.§ 1326 has a right under the due process clause of the Fifth Amendment to collaterally attack the validity of his prior removal order because the removal order serves as a predicate element of the charged offense. The district court and the court of appeals had concluded that the defendants' lack of understanding of their rights to appeal their deportation orders rendered their prior deportation proceedings "fundamentally unfair." Id. at 832. On appeal to the Supreme Court, the Government did not challenge the finding that the deportation proceeding was fundamentally unfair and asserted only that Section 1326 did not authorize a collateral attack on the underlying deportation order. The Supreme Court determined that "Congress did not intend the validity of the deportation order to be contestable in a §1326 prosecution" but concluded "[i]f the statute envisions that a court may impose a criminal penalty for re-entry after any deportation, regardless of how violative of the rights of the alien the deportation proceeding may have been, the statute does not comport with the constitutional requirement of due process." Id. at 837. The Supreme Court explained:
Our cases establish that where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceedings. (citations omitted). This principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense. (footnote omitted). The result of those proceedings may subsequently be used to convert the misdemeanor of unlawful entry into the felony of unlawful entry after deportation. Depriving an alien of the right to have the disposition in a deportation hearing ...