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United States v. Valencia

United States District Court, D. Utah

August 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JUAN CARLOS VALENCIA, Defendant.

          MEMORANDUM DECISION AND ORDER

          CLARK WADDOUPS UNITED STATES DISTRICT JUDGE

         This 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.

         FACTUAL BACKGROUND

         On 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.” Id.

         One 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 follows:

(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 felony”); and
(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. § 1227(a)(2)(C).

         Mr. 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).

         Subsequently 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.

         ANALYSIS

         I. CHALLENGES TO A REMOVAL ORDER

         A. Subject-Matter Jurisdiction

         Mr. 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.

         In his 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 ...


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