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United States v. Herrera-Perez

United States District Court, E.D. Louisiana

January 15, 2020


         SECTION "F"




         Before the Court is Guadalupe Herrera-Perez's motion to dismiss indictment. For the following reasons, the motion is DENIED.


         Twenty-two 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.

         A self-claimed native and citizen of Mexico, Guadalupe Herrera-Perez first entered the United States on April 3, 1980.[2]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.

         That 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 judge.”

         Along 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 Mexico.

         Soon 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 Mexico.

         Soon 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.

         The 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.[3] He now seeks to dismiss the bill of information.


         “A 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 omitted).


         In 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 ...

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