United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
WADDOUPS UNITED STATES DISTRICT JUDGE
matter is before the court on a Motion to Dismiss filed by
Defendant Juan Carlos Valencia. Mr. Valencia has been charged
with reentry into the United States after a prior removal in
violation of 8 U.S.C. § 1326. He moves to dismiss the
charge against him on the ground that “the prior
removal order was void and cannot be used to establish a
violation of § 1326.” Mot. to Dismiss, at 1 (ECF
No. 17). For the reasons stated below, the court denies the
Motion to Dismiss.
November 9, 2010, Mr. Valencia was served personally with a
Notice to Appear for removal proceedings. Notice to Appear
(ECF No. 17-1 at 2-3). The Notice charged him with being an
“alien present in the United States who has not been
admitted or paroled.” Id. at 2. It also
charged him with being an alien who had been convicted for
discharging a firearm in an occupied building and
“sentenced to a term of imprisonment of 5 years.”
week later, Mr. Valencia was served with a Notice of Hearing
that informed him the removal hearing would be held on
November 23, 2010 at 8:00 a.m. at the location specified in
the hearing notice. Notice of Hearing (ECF No. 17-1 at 6).
When Mr. Valencia appeared at the hearing, he was served with
an I-261 form. In lieu of the prior allegation that Mr.
Valencia had not been admitted or paroled, paragraph 4 of the
I-261 stated that he had been “inspected and admitted
by an Immigration Officer.” I-261 (ECF No. 17-1 at 5).
The I-261 also added charges, which are paraphrased as
(1) being an alien who had been convicted of an aggravated
felony after admission into the United States, see 8
U.S.C. § 1227(a)(2)(A)(iii); 8 U.S.C. §
1101(a)(43)(E)(ii) (defining “aggravated
(2) being an alien who, after admission into the United
States, had been convicted of use, possession, or carrying of
a firearm or attempting to do the same. See 8 U.S.C.
Valencia admitted he had previously been inspected and
admitted. See Id. ¶ 4. He further admitted that
he had been convicted of the crime stated in the Notice to
Appear and sentenced to a five-year term of imprisonment.
Notice to Appear (ECF No. 17-1 at 2). Based on those
admissions, the Immigration Court sustained the two
additional charges and determined that Mr. Valencia was
removable. See I-261 and Removal Order (ECF No. 17-1
at 5, 7). Mr. Valencia did not seek any relief from removal.
Order (ECF No. 17-1 at 7). Accordingly, the Immigration Judge
ordered him removed, id., which removal occurred on
December 2, 2010. Removal Confirmation (ECF No. 17-1 at 9).
Mr. Valencia reentered the United States in 2011 and was
removed a second time. Second Removal Confirmation (ECF No.
17-1 at 12). He then reentered again in 2018, which reentry
is the subject of the present criminal charges against him.
CHALLENGES TO A REMOVAL ORDER
Valencia contends the present charge against him must be
dismissed because the original Removal Order is void on the
basis that his Notice to Appear did not contain the time and
date of his removal hearing. Mr. Valencia argues the absence
of that information means subject-matter jurisdiction never
vested in the Immigration Court. Mot. to Dismiss, at 2.
Therefore, the Immigration Court had no authority to enter
the Removal Order and it is void. Id.
opening brief, Mr. Valencia largely relied upon United
States v. Rivas-Gomez, 2:18-cr-566, 2019 WL 2870118 (D.
Utah July 3, 2019) and United States v.
Zuniga-Hernandez, 1:18-cr-53, 2019 WL 2161551 (D. Utah
May 17, 2019) for his contentions. Upon further review and
development of the case law, however, the court concludes
those cases did not apply the proper standard about when a
removal order may be collaterally attacked. In his reply
brief, Mr. Valencia cited additional authority, which the
court does not find persuasive ...