The opinion of the court was delivered by: Judge Caputo
Presently before the Court is Defendant Luis Antonio Dutton-Myrie's First Motion to Dismiss the Indictment (Doc. 87.) Because the Defendant fails to meet the statutory criteria for making a collateral challenge to the prior removal order, his motion to dismiss will be denied.
Defendant Luis Antonio Dutton-Myrie ("Dutton-Myrie") was born on January 11, 1969 in Colon, Panama. (Doc. 87 ¶ 4.) He entered the United States on January 11, 1991 at Miami, Florida pursuant to a lawfully issued visa. (Doc. 87 ¶ 5.) On April 13, 1998, Dutton-Myrie appeared before an Immigration Judge for a removal proceeding. (Doc. 87 ¶ 7.) Dutton-Myrie was represented by counsel at the removal proceeding. (Doc. 87 ¶ 8.) At the conclusion of the removal proceeding, the Immigration Judge ordered that Dutton-Myrie be deported. (Doc. 87 ¶ 9; Deportation Order, Doc. 87, Ex. A.) Dutton-Myrie argues that this removal proceeding was fundamentally unfair for seven reasons:*fn1 (1) the proceeding was conduct in English and at the time, Dutton-Myrie did not speak or understand the English language well enough to participate; (2) no interpreter was provided for him; (3) Dutton-Myre's counsel was ineffective; (4) Dutton-Myrie was never presented with a Spanish language wavier form; (5) Dutton-Myrie was not advised of his right to appeal either by the order or by being provided with INS form I-618; (6) Dutton-Myrie was not advised of his right to seek discretionary relief pursuant to 8 U.S.C. § 1182(c) and (h), and § 1254(a); (7) there is no accurate transcript or audible recording which exists.*fn2
On November 7, 2007, Dutton-Myrie was charged in an Indictment by the Grand Jury for the Middle District of Pennsylvania with illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b)(2). (Doc. 1.) On November 8, 2007, Dutton-Myrie was arraigned and pled "not guilty" to these charges. (Doc. 11.) On June 22, 2009, Dutton-Myrie filed the present motion to dismiss the indictment, challenging that the underlying deportation order was procedurally defective. (Doc. 87.) This motion has been fully briefed and is now ripe for disposition.
Under Federal Rule of Criminal Procedure 12(b), a defendant may file a pretrial motion raising "any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R. Crim. P. 12(b)(2). When charged with a violation of 8 U.S.C. § 1326, Congress has set forth three requirements before a collateral challenge may be made against the underlying removal order:
(d) Limitation on collateral attack on underlying deportation order In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) of this section or subsection (b) of this section unless the alien 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 review; and
(3) the entry of the order was fundamentally unfair.
8 U.S.C. 1326(d).In order to bring a challenge against the underlying removal, a Defendant must satisfy all three requirements. United States v. Torres, 383 F.3d 92, 99 (3d Cir. 2004).
The Supreme Court has held that "where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding." United States v. Mendoza-Lopez, 481 U.S. 828, 837-38 (1987) (citation omitted). The Supreme Court continued, "[t]his principle means at the very least that where the defects in an administrative proceeding foreclose judicial review of that proceeding, an alternative means of obtaining judicial review must be made available before the administrative order may be used to establish conclusively an element of a criminal offense." Id. at 838. In 1996, Congress codified the decision in Mendoza-Lopez in the language of § 1326(d), establishing three factors which must be demonstrated to collaterally challenge the underlying deportation proceeding. Torres, 383 F.3d at 98. Dutton-Myrie challenges both his 1998 ...