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United States v. Herrera-Fuentes

United States District Court, D. New Hampshire

August 7, 2019

United States
v.
Misael Herrera-Fuentes

          Dorothy E. Graham, Esq., Alfred J.T. Rubega, Esq., Helen W. Fitzgibbon, Esq.

          ORDER

          Paul J. Barbadoro, United States District Judge.

         The United States charged Misael Herrera-Fuentes with one count of violating 8 U.S.C. § 1326(a), the illegal reentry statute. Herrera-Fuentes responded with supplemental motions to dismiss that collaterally attack the immigration court order the government relies on to prove that he had previously been removed from the United States. Because I conclude that Herrera-Fuentes cannot collaterally attack the immigration court order, I deny his motions.

         I. FACTUAL BACKGROUND

         Herrera-Fuentes, a Honduran national, has been removed twice before. In September 2007, the Department of Homeland Security (“DHS”) found him living in Manchester, New Hampshire, and removed him to Honduras. In October 2012, he was detained after unlawfully entering the United States near Eagle Pass, Texas. His removal order was reinstated and he was again removed.

         The details surrounding Herrera-Fuentes' first removal are central to this case. On September 13, 2007, the Patrol Agent-in-Charge served Herrera-Fuentes with a Notice to Appear before an immigration judge. See Doc. No. 11-1. That Notice instructed him to appear at the Ribicoff Federal Building in Hartford, Connecticut “on a date to be set at a time to be set.” Doc. No. 11-1. On September 24, Herrera-Fuentes, who was then in detention, received a “Notice of Hearing in Removal Proceedings” specifying that his removal hearing would be held “on Sep 26, 2007 at 9:00 A.M.” Doc. No. 11-2. Herrera-Fuentes appeared at the hearing via video teleconference. Following the hearing, the Executive Office for Immigration Review ordered his removal (“2007 Removal Order”). See Doc. No. 11-3. He did not challenge the order and he was later removed.

         In August 2018, Herrera-Fuentes was indicted in this court for illegal reentry. See Doc. No. 1. He responded with a motion to dismiss claiming that the 2007 Removal Order was improper because his Notice to Appear did not specify the date and time of his removal hearing. I denied his motion from the bench because Herrera-Fuentes was served with a Notice of Hearing that gave him advance notice of when the hearing would be held. On January 24, 2019, he entered a conditional guilty plea preserving his right to appeal from the denial of his motion to dismiss. On March 29 and May 24, 2019, he filed supplemental motions to dismiss providing new factual and legal support for his original motion. See Doc. Nos. 32, 38. Those motions are before the court.

         II. LEGAL BACKGROUND

         An illegal reentry charge requires proof that the defendant “(1) is an alien, (2) was previously deported, and (3) thereafter entered, or attempted to enter, the United States without permission.” United States v. Contreras Palacios, 492 F.3d 39, 42 (1st Cir. 2007). Herrera-Fuentes targets the second element of the crime by collaterally attacking the 2007 Removal Order. As he sees it, the immigration court lacked jurisdiction over him because his original Notice to Appear did not specify the date and time of his removal hearing as is required by 8 U.S.C. § 1229(a). Accordingly, he contends that the 2007 Removal Order was unlawful and cannot be used to satisfy the second element of an illegal reentry prosecution. This apparently simple argument is a straight thread pulled from an entangled skein. Before I address it, I describe the law on which it is based.

         A. Collateral Attacks on Orders

         The law has not always permitted collateral attacks on removal orders. But in United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Supreme Court held that the due process clause entitles an alien to collaterally challenge a removal proceeding during an illegal reentry prosecution if “defects in [the] administrative proceedings foreclose[d] judicial review of that proceeding.” See id. at 838. Because the defendants in Mendoza-Lopez had been denied their right to appeal their removal orders, the Court concluded that the defendants' motions to dismiss must be granted. See id. at 842.

         Congress responded to the Mendoza-Lopez decision some years later. In the Antiterrorism and Effective Death Penalty Act of 1996, PL 104-132 (Apr. 24, 1996), 110 Stat. 1214, Congress amended the Immigration and Nationality Act (“INA”) by adding a new subsection to § 1326:

(d) In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) unless the alien demonstrates that-
(1) the alien exhausted any administrative remedies that may have been available to seek ...

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