UNITED STATES v. GALVAN OREA (2024)

OPINION AND ORDER

Presently before the Court is Defendant Vicente Galvan-Orea's motion to dismiss, with prejudice, the indictment against him. (ECF No. 20.) The Government indicted Mr. Galvan-Orea with one count of unlawful re-entry into the United States in violation of 8 U.S.C. § 1326(a), (b)(1). (ECF No. 13.)

The motion has been fully briefed. (See ECF Nos. 20, 21.) Finding the facts and legal arguments adequately presented in the parties’ filings, the Court is dispensing with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f).

I. Background

Mr. Galvan-Orea is a Mexican native and citizen. (ECF No. 21 at Pg ID 55.) On or around November 21, 2023, Mr. Galvan-Orea allegedly entered the United States without permission and, as a result, he was arrested and taken into the custody of the United States Immigration and Customs Enforcement (“ICE”). (Id. at Pg ID 58; ECF No. 20 at Pg ID 45.) Pursuant to her authority under the Bail Reform Act of 1984 (“BRA”), Magistrate Judge Elizabeth A. Stafford held a detention hearing on November 27, 2023, and ordered that Mr. Galvan-Orea be released with conditions pending his trial. (ECF Nos. 7, 8, 9.)

Following the hearing, the Government transferred Mr. Galvan-Orea back into ICE's custody. (ECF No. 20 at Pg ID 45.) The Government indicted him on December 6, 2023, for the alleged offense of unlawful reentry despite a previously issued removal order. (Id.; ECF No. 13.) Notwithstanding the pending prosecution, the Government notified the Court that it removed Mr. Galvan-Orea to Mexico on December 27, 2023, per the Immigration and Nationality Act (“INA”). (ECF No. 18.) In its notification, the Government also requested that the Court hold the instant case “in abeyance until [Mr. Galvan-Orea] becomes available.” (Id.)

II. Applicable Law and Analysis

Mr. Galvan-Orea argues that the indictment against him should be dismissed with prejudice because (1) deportation violated the INA and its regulations and (2) Magistrate Judge Stafford's release order and the BRA supersedes the Government's removal power. (ECF No. 20 at Pg ID 47-50.) Mr. Galvan-Orea further contends that the Government's decision to remove him amid the criminal prosecution is effectively an abandonment of the instant case and violates his Fifth and Sixth Amendment rights. (Id. at Pg ID 50-51.)

The Government responds that the Court's use of its supervisory powers to dismiss the indictment would clash with the INA and principles of federalism. (ECF No. 21 at Pg ID 58-60, 67-68.) The Government also claims that the Court has no legitimate basis under its supervisory powers to dismiss the indictment because there are no statutory, regulatory, or constitutional violations at issue. (Id. at Pg ID 60-67.) Lastly, the Government argues that its actions do not prejudice Mr. Galvan-Orea. (Id. at Pg ID 68-70.)

A. Alleged Violations

The Court addresses Mr. Galvan-Orea's alleged violations under the INA, BRA, and Constitution.

i. BRA and the pretrial release order

According to Mr. Galvan-Orea, the BRA and Magistrate Judge Stafford's pretrial release order prevented the Government from detaining him. (ECF No. 20 at Pg ID 49.) Mr. Galvan-Orea maintains that “[i]f ․ [he] is not released pending trial as directed by the Magistrate Judge pursuant to the Bail Reform Act, the pending criminal prosecution of the Defendant may not go forward. To hold otherwise would deprive [him] of his statutory right to pretrial release under the Bail Reform Act ․” (Id.) (quoting United States v. Trujillo-Alvarez, 900 F. Supp. 2d 1167, 1170 (D. Or. 2012)). Relying on Trujillo-Alvarez and United States v. Blas, No. Crim. 13-0178-WS-C, 2013 WL 5317228, at *5, *8 (S.D. Ala. 2013), Mr. Galvan-Orea concludes that the Government's choice to pursue criminal prosecution placed the Government under the control of the judiciary and removed from the Government its ability to carry out its lawful duties–even those mandated by the INA. (Id. at Pg ID 49-50.) Mr. Galvan-Orea indicates that the Government was required to appeal the release order if it disagreed with his release, not “disregard the congressionally-mandated provisions of the [BRA] by keeping a person in detention.” (Id.) The Court is unpersuaded by this argument because it conflicts with established law in this circuit.

The Sixth Circuit has addressed this precise issue raised by Mr. Galvan-Orea in a similar case. In United States v. Veloz-Alonso, 910 F.3d 266, 267 (2018), the Government criminally charged and convicted the defendant of illegally entering the country and, after pleading guilty and before his sentencing hearing, a judge released him on bail. During his release, the Government detained the defendant and issued a deportation order. Id. The district court found in favor of the defendant and issued an order prohibiting ICE from detaining and removing him under the INA while he was released on bail. Id. at 267-68.

The Sixth Circuit analyzed the BRA and INA and explicitly rejected the framework set out in Trujillo-Alvarez and similar cases, “find[ing] no conflict between [the two statutes].” Id. at 270. The court declined to apply the principle that “once an alien is submitted for criminal prosecution, the statutory permissions of the BRA supersede the statutory mandates of the INA”, determining the principle “incorrect as a matter of law.” Id. at 268, 271. Simply put, “ICE may fulfill its statutory duties under the INA to detain an illegal alien pending trial or sentencing regardless of a BRA release determination.” Id. at 270.

Recognizing the Court's duty to effectuate the law when two statutes are capable of coexisting, the Court finds that ICE, acting pursuant to the INA, did not violate the BRA or Magistrate Judge Stafford's pretrial release order when it detained Mr. Galvan-Orea. See id. at 268 (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)). Moreover, the Government was not required to challenge the magistrate court's release order by appeal.

ii. INA and its corresponding regulations

Mr. Galvan-Orea contends that the Government was not mandated or permitted to remove him from the United States during the pendency of his criminal prosecution for two reasons. (ECF No. 20 at Pg ID 47-48.) First, under Mr. Galvan-Orea's construction of § 1231(a)(1)(A), (B) of the INA, legal removal can occur only after a court enters a final judgment for a conviction–not while a defendant is in custody on pretrial release. (Id.) (citing Trujillo-Alvarez, 900 F. Supp. 2d at 1174; Blas, 2013 WL 5317228, at *5). Second, Mr. Galvan-Orea argues that removal was unlawful because, under 8 C.F.R. § 215.2(a), such action is prejudicial to the interests of the United States. (Id. at Pg ID 48.) Mr. Galvan-Orea highlights 8 C.F.R. § 215.3(g), which provides that “[t]he departure from the United States of any alien ․ shall be deemed prejudicial to the interests of the United States” if he is involved in “any criminal case ․ pending in a court in the United States.” (See id.) (citing Blas, 2013 WL 5317228, at *7). These arguments are untenable.

As a threshold matter, the Sixth Circuit holds that it is lawful for ICE to deport noncitizens who are released on bail and under final deportation orders. Veloz-Alonso, 910 F.3d at 270. “The INA, while discretionary in many situations, is mandatory in others.” Id. at 269. For instance, the Government is obligated to reinstate prior removal orders when a noncitizen illegally reenters the country. See id. at 269; 8 U.S.C. § 1231(a)(5). Here, the Government removed Mr. Galvan-Orea from the country pursuant to an existing removal order against him. (See ECF No. 21 at Pg ID 64; ECF No. 13.) His release status at that time is irrelevant. Thus, not only was the Government allowed to deport Mr. Galvan-Orea–the law required it to do so.

Furthermore, the Court is disinclined to accept Mr. Galvan-Orea's interpretation of the INA regulations because they do not apply to removal proceedings. See 8 C.F.R. §§ 215.2(a), 215.3(g). The provisions preserving the interests of the United States relate to a noncitizen's ability to voluntarily leave the United States. See, e.g., United States v. Ailon-Ailon, 875 F.3d 1334, 1339 (10th Cir. 2017) (explaining 8 C.F.R. § 215.2(a) as it relates to voluntary departures); United States v. Baltazar-Sebastian, 990 F.3d 939, 946 (5th Cir. 2021) (“[T]he regulations pertain to actions by an alien, not the Government.”); United States v. Lett, 944 F.3d 467, 472-73 (2d Cir. 2019) (“But these regulations merely prohibit aliens who are parties to a criminal case from departing from the United States voluntarily; they do not affect the government's authority to deport such aliens pursuant to final orders of removal.”). As discussed, Mr. Galvan-Orea did not leave this country on his own accord; his departure was mandated by a removal order. (See ECF No. 13.) The Court, therefore, finds that Mr. Galvan-Orea's departure falls outside of 8 C.F.R. §§ 215.2(a) and 215.3(g); thus, there is no prejudice to the interests of the United States.

iii. Fifth and Sixth Amendments

Mr. Galvan-Orea next alleges that the Government “offend[ed] his basic constitutional rights” when they removed him from the country while pursuing criminal prosecution. (ECF No. 20 at Pg ID 50.) He argues that removal eliminates his right to counsel as guaranteed under the Sixth Amendment and his ability “to review the [G]overnment's evidence against him, or in any way prepare a defense to the charge.” (Id. at Pg ID 50-51.) As a result, he claims that dual enforcement by the Executive Branch also violates his Fifth Amendment right to due process. (Id. at Pg ID 51.) The Court agrees.

The thrust of the Government's argument is that the Court “must focus on the action, his removal,” rather than “[a]ny incidental effects on the exercise of a constitutional right.” (ECF No. 21 at Pg ID 66.) The Government is mistaken. While the Government may deport a noncitizen pending trial, it is still required to act in accordance with the Constitution.

With respect to the Fifth Amendment right to due process of law,

a criminal defendant will be treated with that fundamental fairness essential to the very concept of justice. In order to declare a denial of it [the Court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.

United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982) (internal citation and quotation omitted); see U.S. Const. amend. V. The Sixth Amendment provides, in relevant part, that a defendant in a criminal prosecution “shall enjoy the right to ․ have the Assistance of Counsel for his defence.” U.S. Const. amend. VI; see Maine v. Moulton, 474 U.S. 159, 170 (1985) (“[T]o deprive a person of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself.”).

Upholding these rights is especially important once a defendant has been accused of a crime. Accordingly, courts have consistently found that Government deportation of a noncitizen pretrial violates the Constitution. See, e.g., United States v. Castillo, 537 F. Supp. 3d 120, 128 (D. Mass. 2021) (“[A]bsence from the [United States], where he faces charges and where he allegedly committed the charged offense, interferes with his ability to consult with counsel and prepare a defense ․”); United States v. Resendiz-Guevara, 145 F. Supp. 3d 1128, 1138 (M.D. Fla. 2015) (“It is clear that Defendant's deportation presents a clear challenge ․ to his ability to consult with counsel, to review the evidence against him and to prepare a defense to the charge.”); United States v. Ferreira-Chavez, 1:20-cr-00145, 2021 WL 602822, at *4 (D. Idaho Feb. 12, 2021) (finding that the defendant's removal “severely curtailed” his “ability to meaningfully communicate with counsel or prepare his defense”).

The Government insists that Mr. Galvan-Orea's relocation back to Mexico does not prevent him from obtaining a competent lawyer or communicating with that lawyer. (ECF No. 21 at Pg ID 66.) The Government offers two alternatives. First, it suggests that Mr. Galvan-Orea can “call, write, email or video conference his attorney.” (Id.) However, “it is not the prerogative of the prosecution or ICE to dictate how Defendant is able to consult with his attorney.” United States v. Lutz, No. CR-19-00692-001-TUC-RM, 2019 WL 5892827, at *5 (D. Ariz. Nov. 12, 2019). Second, the Government advises Mr. Galvan-Orea to “apply for admission to the United States and otherwise work with his attorney to obtain lawful status in the United States.” (ECF No. 21 at Pg ID 66.) Given Mr. Galvan-Orea's history of removal, any chance of the Government allowing him to lawfully reenter the United States is highly unlikely. See 8 U.S.C. § 1182(a)(9)(A)(ii) (providing that noncitizens seeking admission to the United States who have been previously removed for a second time within 20 years are inadmissible).

The Government further argues that there are no constitutional violations because “all his removal to Mexico has done is to stay the proceedings.” (ECF No. 21 at Pg ID 66.) The Government points to its removal notice where it requested that the Court stay the proceedings until Mr. Galvan-Orea becomes available. (Id.; ECF No. 18.) The Government, however, makes this suggestion without any cited authority. (Id.) The Court does not see any justification to allow this matter to be held in what will be an indefinite abeyance.

Additionally, the Government's point that Mr. Galvan-Orea did not object to his removal is “irrelevant to the analysis of whether the criminal charges should be dismissed.” Ferreira-Chavez, 2021 WL 602822, at *3 (“[Defendant's] lack of objection has no bearing on his motion to dismiss.”).

As a result of the restrictions placed on Mr. Galvan-Orea's ability to consult with his attorney and the Government's request for an unspecified stay, the Court finds that the Government has impeded Mr. Galvan-Orea's Fifth Amendment right to due process and Sixth Amendment right to counsel.¹

B. Abandonment of the Prosecution

Mr. Galvan-Orea argues that the Government had a choice whether to remove him during its prosecution, and “by deporting him, the [G]overnment has effectively abandoned the criminal prosecution.” (ECF No. 20 at Pg ID 46-47.) The Court is unaware of any Sixth Circuit caselaw that addresses this issue. Therefore, the Court turns to other courts for guidance.

The Court finds merit to the conclusion reached by some courts that the Government's deportation of a defendant during the pendency of criminal proceedings reflects its abandonment of those proceedings. See, e.g., Castillo, 537 F. Supp. 3d at 129 (quoting United States v. Munoz-Garcia, 455 F. Supp. 3d 915, 925 (D. Ariz. 2020)) (“The government chose to proceed with the defendant's removal proceeding and deport her from the United States. The result of that choice is that the government abandoned the criminal prosecution.”). By deporting Mr. Galvan-Orea, the Government has made it impossible for this case to conclude. Mr. Galvan-Orea's deportation leaves this case in limbo, indefinitely, which the Court views as an abandonment of the prosecution against Mr. Galvan-Orea. This finding weighs in favor of dismissing the indictment.

C. Appropriate Remedy

Mr. Galvan-Orea claims that dismissal of the indictment is the only remedy available here. (ECF No. 20 at Pg ID 52.) The Government responds that it should be allowed to maintain the indictment against Mr. Galvan-Orea because the Court does not have a legitimate basis for doing so. (ECF No. 21 at Pg ID 61.) The Government also suggests that it is too early to assess whether Mr. Galvan-Orea is (or will be) prejudiced by deportation and the pending indictment because “[i]f and when he returns to the United States, and these proceedings resume, he will have all of those rights, and more.” (Id. at Pg ID 69.)

As a general matter, this Court may invoke its supervisory powers to dismiss a grand jury indictment, which is “premised on the inherent ability of the federal courts to formulate procedural rules not specifically required by the Constitution or Congress to supervise the administration of justice.” United States v. Streebing, 987 F.2d 368, 371 (6th Cir. 1993). The Supreme Court summarized the three purposes for which a court may use its supervisory powers: “to implement a remedy for violation of recognized rights, to preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury, and as a remedy designed to deter illegal conduct.” United States v. Bartel, 19 F.3d 1105, 1110 (6th Cir. 1994) (citing United States v. Hasting, 461 U.S. 499, 505 (1983)). For a court to utilize its supervisory powers, there must be prejudice to the defendant. United States v. Smith, 687 F.2d 147, 153 (6th Cir. 1982) (quoting United States v. Nembhard, 676 F.2d 193, 200 (6th Cir. 1982)).

As discussed above, the Court disagrees with Mr. Galvan-Orea that the Government violated the BRA, Magistrate Judge Stafford's pretrial release order, and the INA and its regulations. However, the Government interfered with Mr. Galvan-Orea's Fifth and Sixth Amendment rights when it removed him from the United States during the pendency of his criminal proceedings. (See ECF No. 20 at Pg ID 46.) The Court is also of the opinion that the Government has effectively abandoned its prosecution against Mr. Galvan-Orea. These findings call for dismissal of the indictment.

There are no alternatives that would ensure Mr. Galvan-Orea's right to a fair trial. Mr. Galvan-Orea's absence from this country will prevent him from adequately defending himself against the charge and being tried in a reasonable timeframe. “Moreover, [Mr. Galvan-Orea] is prejudiced by having a criminal charge open against him even if he is out of the United States.” Castillo, 537 F. Supp. 3d at 130-31.

The Court must now decide whether dismissal with prejudice is proper. The Government reasons that if the Court dismisses the indictment, it should be without prejudice because dismissal with prejudice is an “extreme sanction” reserved for “extraordinary circumstances” involving governmental misconduct. (ECF No. 21 at Pg ID 70.) Given that ICE validly removed Mr. Galvan-Orea as mandated by the INA, the Court agrees that the Government did not engage in misconduct, and the circumstances do not warrant dismissal with prejudice.

III. Conclusion

Based on the foregoing, dismissal of the indictment is necessary. Although Mr. Galvan-Orea's removal from the United States was valid (and mandatory) under the INA, the Government interfered with his Fifth and Sixth Amendment rights by removing him pretrial. Moreover, the Government abandoned its prosecution. Because there is no evidence that the Government engaged in misconduct, the Government may choose to prosecute Mr. Galvan-Orea in the future should he reenter the country illegally. The indictment against Mr. Galvan-Orea is, therefore, dismissed without prejudice.

Accordingly,

IT IS ORDERED that Defendant Mr. Galvan-Orea's Motion to Dismiss the Indictment with prejudice (ECF No. 20) is GRANTED IN PART AND DENIED IN PART.

FOOTNOTES

1.   The Court acknowledges that Mr. Galvan-Orea has not provided great detail about his lack of communication with his attorney or how his removal has impacted his preparation for trial. However, the circumstances of the case make clear to the Court that Mr. Galvan-Orea's relocation to Mexico, a couple of thousand miles from Michigan, where his counsel is located, will present apparent challenges for their trial preparation.

LINDA V. PARKER, UNITED STATES DISTRICT JUDGE