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United States v. Walkes

United States District Court, D. Massachusetts

January 25, 2017

UNITED STATES OF AMERICA,
v.
JUAN WALKES, Defendant.

          MEMORANDUM AND ORDER

          ALLISON D. BURROUGHS UNITED STATES DISTRICT JUDGE

         Currently pending before the Court is Defendant Juan Walkes's Motion to Dismiss [ECF No. 51] the Indictment charging him with illegal re-entry as a deported alien under 8 U.S.C. §§ 1326(a), (b)(2) and 6 U.S.C. §§ 202(3)-(4), 557 [ECF No. 1]. For the reasons stated below, the motion is GRANTED.

         I. BACKGROUND

         On December 15, 2016, the Court held a hearing on Walkes's Motion to Dismiss [ECF No. 51]. See [ECF No. 61]. At the hearing, Walkes testified and the Court admitted as exhibits the documents attached to Walkes's Motion to Dismiss. See [ECF No. 51, Exs. A-K]. The following facts are derived from the December 15, 2016 hearing, the exhibits admitted at that hearing, and the factual record in this case.

         Walkes was born in the Bahamas in 1971, but emigrated to the United States in 1976. He grew up in Cambridge, Massachusetts, and attended Cambridge Rindge and Latin High School. He is married with two children, a 12-year-old daughter and a 20-year-old son. He is also the stepfather to his wife's two daughters from a previous relationship.

         On April 23, 1999, Walkes pleaded guilty to distribution and possession with intent to distribute a controlled substance and corresponding school zone charge in Dorchester District Court. [ECF No. 51, Ex. D]. He received sentences that ran concurrently: one day in the House of Corrections for the drug charge and two years for the school zone charge. Id.

         On August 24, 1999, while incarcerated, Walkes had a meeting with an officer from the Immigration and Naturalization Services (INS). At the meeting, he received a Notice of Intent to Issue a Final Administrative Removal Order (“Notice of Intent”). See [ECF No. 51, Ex. B]. Walkes testified that the immigration official told him he had no rights and was not allowed to see a judge. Further, Walkes testified that he was never provided a list of lawyers that might provide him with free legal counsel. He also claimed that he did not receive a copy of the Notice of Intent to take with him when he left the meeting. Walkes received an Acknowledgement form, on which he could indicate whether he was contesting his deportability. See [ECF No. 51, Ex. C]. The Acknowledgement form also indicates that “Alien refused to acknowledge receipt of this document [the Notice of Intent].” Id. Walkes filled out the Acknowledgment form on August 30, 1999, indicating that he wanted to contest the deportation by checking the box requesting further review. Although the government contested Walkes's testimony concerning his interactions with INS through cross-examination, it did not put on a witness to offer an alternate version, which the Court attributes to the passage of time and the difficulty of locating the appropriate witness.

         On September 3, 1999, Walkes was served with a Final Administrative Removal Order (“Final Order”). See [ECF No. 51, Ex. A]. The section of the Final Order indicating whether the respondent reserved a petition for review or waived a petition for review is blank. Walkes stated that the immigration official never explained his right to petition for review or discussed that particular section with him. He avers that he would have petitioned for review if he had known that he had a right to do so. The Final Order contains no information explaining that Walkes had a right to petition for review or how he might file such a petition.

         On or about March 8, 2001, Walkes was deported. [ECF No. 1]. He re-entered the United States at some point thereafter. On December 4, 2015, he was arrested by ICE officers based on an anonymous tip. He was arraigned in this Court on the charge of unlawful re-entry. [ECF No. 6]. On May 6, 2016, Walkes's guilty pleas from April 23, 1999 were vacated after the Dorchester Court allowed Walkes's motions to vacate pursuant to Padilla v. Kentucky, 559 U.S. 356 (2010). See [ECF No. 51, Ex. G]. On August 2, 2016, all the convictions were dismissed at the request of the Commonwealth. See [ECF No. 51, Exs. D, E]. On August 17, 2016, Walkes submitted a request to ICE to reconsider and reopen the 1999 removal proceedings, which ICE denied as not cognizable and untimely filed. See [ECF No. 51, Ex. I].

         On October 28, 2016, Walkes filed a Motion to Dismiss the Indictment [ECF No. 51], which the government opposed [ECF No. 58].

         II. LEGAL STANDARD

         “It is a crime for an alien to re-enter the country after he has been deported, unless he has the express permission of the Attorney General of the United States (or unless such permission is unnecessary in his case for other reasons).” United States v. DeLeon, 444 F.3d 41, 44 (1st Cir. 2006) (citing 8 U.S.C. § 1326(a)). “The elements of illegal reentry are 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. Vargas, 277 F.App'x 11, 11 (1st Cir. 2008) (quoting United States v. Contreras Palacios, 492 F.3d 39, 42 (1st Cir.2007)). 8 U.S.C. § 1326(d) provides an exception “for aliens who can prove that the original deportation order was based on administrative proceedings which were fundamentally unfair.” DeLeon, 444 F.3d at 44. Under § 1326(d), “an alien may not challenge the validity of the deportation order . . . unless . . . [he]

         demonstrates that-”

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial ...

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