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United States v. Soto-Mateo

United States Court of Appeals, First Circuit

August 26, 2015

UNITED STATES OF AMERICA, Appellee,
v.
LENNY FERNANDO SOTO-MATEO, Defendant, Appellant

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Nathaniel M. Gorton, U.S. District Judge.

Affirmed.

Eduardo Masferrer, with whom Masferrer & Associates, P.C. was on brief, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Kayatta, Selya and Dyk[*], Circuit Judges.

OPINION

Page 118

SELYA, Circuit Judge.

This is a criminal case in which the appellant is challenging his conviction for illegal reentry into the United States as a previously removed alien. See 8 U.S.C. § 1326(a). The appeal turns on the validity of the underlying order of removal. The district court found that the appellant could not satisfy the criteria for mounting a collateral attack on that order and, thus, denied the appellant's motion to dismiss the indictment. The appellant now seeks to reverse the denial of his motion. After careful consideration, we affirm.

I. BACKGROUND

Defendant-appellant Lenny Fernando Soto-Mateo, a citizen of the Dominican Republic, was admitted to the United States as a lawful permanent resident in 2000 at age 16. Some seven years later, a federal grand jury sitting in the District of Massachusetts charged the appellant with aggravated identity theft, see 18 U.S.C. § 1028A, making false statements in a passport application, see id. § 1542, and making a false claim of citizenship, see id. § 911. He pleaded guilty and was sentenced to serve a total of 25 months in prison.

In due course, the Department of Homeland Security (DHS) instituted removal proceedings against the appellant on the ground that he had been convicted of an aggravated felony. See 8 U.S.C. § 1101(a)(43)(G); see also id. § 1227(a)(2)(A)(iii) (authorizing removal of " [a]ny alien who is convicted of an aggravated felony" ). The appellant received a notice concerning bond and custody indicating that he was subject to mandatory

Page 119

detention as a result of his conviction for an aggravated felony. A second custody notice advised him that he could " not request a review of [the custody] determination . . . because the Immigration and Nationality Act prohibit[ed] [his] release from custody." See id. § 1226(c)(1)(B) (mandating detention of aliens deportable under id. § 1227(a)(2)(A)(iii)).

The appellant acknowledged receipt of the removal and custody papers. He also completed a form entitled " Record of Sworn Statement," which began with a statement of rights printed in both English and Spanish. The enumerated rights included the right to consult an attorney. The form listed a number of questions aimed at determining the appellant's nationality, immigration status, and eligibility for asylum. The appellant expressly waived his right to a lawyer and answered all of the questions in writing. To a question asking whether he was willing to sign a stipulated request for removal and give up the right to appear before an immigration judge (IJ) before being removed, he answered in the affirmative.

Given his acknowledged willingness to stipulate to his removal, DHS provided the appellant with a form entitled " Stipulated Request for Order of Removal and Waiver of Hearing" (the Stipulation). See id. § 1229a(d); 8 C.F.R. § 1003.25(b). The Stipulation was printed in both English and Spanish. By signing it, the appellant conceded removability based on the charges contained in the removal papers, confirmed that he was not applying for any form of relief from removal, and waived his right to a hearing before an IJ. At the same time, he " waive[d] [his] right to appeal the written decision for [his] removal." The Stipulation concluded with a declaration that the appellant " fully understand[s] ...


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