United States District Court, E.D. Louisiana
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is Guadalupe Herrera-Perez's motion to dismiss
indictment. For the following reasons, the motion is DENIED.
years ago, at age 18, Guadalupe Herrera-Perez appeared for a
removal hearing at which the immigration judge ordered that
he be removed from the United States to Mexico. Challenging
the jurisdiction of the immigration judge and the
constitutionality of the removal proceedings all those years
ago, and additionally challenging the government's
ability to prove that he is an “alien, ”
Herrera-Perez now moves to dismiss the bill of information
charging him with illegal reentry by a previously deported
alien, in violation of 8 U.S.C. § 1326.
self-claimed native and citizen of Mexico, Guadalupe
Herrera-Perez first entered the United States on April 3,
1980.On December 8, 1997, he was convicted of
theft in Harris County, Texas. A month later, he was
interviewed by immigration enforcement agents; he told them
he was a Mexican citizen and national. Just a week later on
January 16, 2018 -- while still in immigration custody --
Herrera-Perez claimed that he was born in the United States
and had no living family members. But he recanted this claim
of U.S. citizenship when asked to provide a sworn statement.
same day, Herrera-Perez was personally served a Notice to
Appear before an immigration judge at a date “[t]o be
calendared and notice provided by the office of the
Immigration Judge. Notice will be mailed to the address
provided by the respondent.” He acknowledged service of
the notice and acknowledged being provided, along with the
notice, a notice of appellate rights and a list of attorneys
and organizations who may be available to represent him. He
indicated on the form that he requested an immediate hearing
in which he specifically waived his “right to have a
10-day period prior to appearing before an immigration
with seven other individuals, Herrera-Perez appeared for an
immigration hearing on January 27, 1998. The immigration
judge advised Herrera-Perez that he was facing removal
because he had been charged with entering the United States
illegally and because he had been convicted of a crime while
in the United States. The immigration judge explained that
she could postpone the hearing if Mr. Herrera-Perez wanted to
consult an attorney; he declined. The immigration judge then
explained other rights attendant to the removal proceeding,
such as the right to present evidence and witnesses or to
question any government witnesses. At that time, Mr.
Herrera-Perez and the other respondents were placed under
oath. Mr. Herrera-Perez admitted that he was a native and
citizen of Mexico who had illegally entered the United States
on April 3, 1980. The immigration judge explained that Mr.
Herrera-Perez may be eligible to apply for cancellation of
removal and asked what he wanted to do. “I want to be
deported, ” Mr. Herrera-Perez stated. When asked
whether he accepted the deportation order or whether he
wished to appeal it to a higher court, he stated “I
accept this order.” The deportation order and warrant
issued that same day. Mr. Herrera-Perez was then deported to
after he was deported, Mr. Herrera-Perez illegally reentered
the United States sometime in February 1998 at Brownsville,
Texas. On September 10, 1998, Mr. Herrera-Perez was convicted
of aggravated robbery in Harris County, Texas, and sentenced
to 10 years imprisonment. On July 12, 1999, Mr. Herrera-Perez
was personally served, and acknowledged receipt of, a Notice
of Reinstatement of Prior Order. On July 21, 1999, a warrant
for removal was issued, and on August 11, 2008, Mr.
Herrera-Perez again was removed from the United States to
thereafter, again he returned, reentering the United States
just two months later in October 2009. On April 26, 2011, Mr.
Herrera-Perez was convicted in Harris County, Texas for
failure to identify to police officers/giving false
information; he was sentenced to eight days' confinement
and released to the custody of federal immigration
authorities. On May 27, 2011, Mr. Herrera-Perez pleaded
guilty to the charge of illegal reentry of a previously
deported alien after an aggravated felony conviction; on
August 16, 2011, he was sentenced to be imprisoned for 27
months. He was removed from the United States to Mexico on
May 24, 2013.
latest Form I-213 (Record of Deportable/Inadmissible Alien),
dated November 28, 2017, indicates that Mr. Herrera-Perez
admitted to reentering the United States without inspection
near Brownsville, Texas in December 2014, just seven months
after his last deportation. On November 26, 2017, Mr.
Herrera-Perez was arrested in Jefferson Parish; two days
later, he was transported to the custody of the Department of
Homeland Security. On January 23, 2018, Mr. Herrera-Perez was
charged by bill of information with illegal reentry by a
previously deported alien in violation of 8 U.S.C. §
1326. He now seeks to dismiss the bill of
party may raise by pre-trial motion any defense, objection,
or request that the court can determine without a trial on
the merits.” Fed. R. Cr. P. 12(b)(1). For example, a
criminal defendant may challenge an indictment for its
defective failure to state an offense. See Fed. R.
Cr. P. 12(b)(3)(B)(v). An indictment or bill of information
must contain “a plain, concise, and definite written
statement of the essential facts constituting the offense
charged[.]” Fed. R. Cr. P. 7(c). To determine whether
an offense has been stated, the Court takes as true the
indictment's allegations. See United States v.
Fontenot, 665 F.3d 640, 644 (5th Cir. 2011)(citation
omitted). Determining whether it is proper to grant a motion
to dismiss an indictment largely depends “upon whether
the infirmity in the prosecution is essentially one of law or
involves determinations of fact.” Id. (quoting
United States v. Flores, 404 F.3d 320, 324 (5th Cir.
2005)). That is, a Court may properly dismiss counts of an
indictment when purely legal questions are presented by a
motion to dismiss. See id. However, “[a]
defendant may not properly challenge an indictment,
sufficient on its face, on the ground that the allegations
are not supported by adequate evidence[.]” See
United States v. Mann, 517 F.2d 259, 267 (5th Cir.
1975). To be sure, “[t]here is no federal criminal
procedural mechanism that resembles a motion for summary
judgment in the civil context.” United States v.
Yakou, 428 F.3d 241, 246 (D.C. Cir. 2005)(citations
Count 1 of the one-count bill of information, the United
States Attorney charges that:
On or about November 26, 2017, in the Eastern District of
Louisiana, the defendant, GUADALUPE HERRERA-PEREZ, an alien,
was found in the United States after having been officially
ordered deported and removed therefrom on or about January
28, 1998, and without the Attorney General of the United
States or his designated successor, the Secretary of the
Department of Homeland Security, as provided for in Title 6,
United States Code, Sections 202(3), 202(4), and 557, having
expressly consented to the ...