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United States v. Gaeta-Galvez

United States District Court, E.D. Wisconsin

March 1, 2019




         1. INTRODUCTION

         Defendant was indicted on June 19, 2018 for having returned to this country after being deported in 2010. (Docket #1). He filed a motion to dismiss the indictment on August 14, 2018. (Docket #11). On October 10, 2018, after taking briefing on the motion, Magistrate Judge David E. Jones issued a report and recommendation to this Court (the “Report”) recommending that the motion be denied. (Docket #19). Defendant objected to the Report and the objection is now fully briefed. For the reasons explained below, the Court agrees that the motion must be denied.

         2. RELEVANT FACTS

         Defendant was born on July 8, 1986, in Jalisco, Mexico. (Docket #13 at 1). He unlawfully immigrated to the United States at age seventeen to live with his brother and sister-in-law in Milwaukee. Id. at 2. On September 10, 2009, the Department of Homeland Security (“DHS”) served Defendant with a Notice to Appear (“NTA”) for removal proceedings. (Docket #11-1). The NTA stated that Defendant was subject to removal because he was a non-citizen who entered the country without official approval. Id. The NTA ordered Defendant to appear before an immigration judge in Chicago on “a date to be set” and at “a time to be set” to show cause as to why he should not be removed. Id. Defendant says that he later received a notice from the immigration court itself which provided the precise date and time of his hearing. (Docket #11 at 2).

         The show cause hearing was held on June 14, 2010. (Docket #11-2). Defendant appeared at the hearing and sought permission to voluntarily depart the country. Id. The court issued an order that day granting Defendant's request and setting a deadline of November 12, 2010 for him to leave. Id. If he failed to do so, the order would automatically convert into an order of involuntary removal to Mexico. Id. Defendant waived his right to appeal the order. Id.

         Defendant claims that he left the country prior to the November 12 deadline. (Docket #11 at 2). However, a form from the U.S. consulate in Ciudad Juarez indicates that Defendant departed on November 13, 2010 by taxi from El Paso. (Docket #11-3). Even though Defendant was no longer physically present in the country, his purported failure to depart by the November 12 deadline triggered the removal provision of the immigration court's order. Thus, on November 15, 2010, DHS issued a warrant of removal for Defendant to be detained and removed if found in the U.S.

         Defendant nevertheless returned to the country and to the Milwaukee area specifically. On January 28, 2018, Defendant was arrested in the Village of East Troy for operating a vehicle while intoxicated and for possession of cocaine. (Docket #13 at 3-4). A few months later, he was taken into custody by Immigration and Customs Enforcement. Id. at 4. On June 19, 2018, a grand jury in this District indicted Defendant for illegally re-entering the country after being ordered removed, in violation of 8 U.S.C. § 1326(a). (Docket #1).


         Defendant's sole argument for dismissal presented to Magistrate Jones was that the underlying immigration court proceedings were void for lack of jurisdiction. Because this was a purely legal question, Defendant did not request, and Magistrate Jones did not conduct, an evidentiary hearing on the motion. On October 10, 2018, Magistrate Jones issued the Report recommending that Defendant's motion be denied. (Docket #19). Defendant timely objected. (Docket #20). After receiving the parties' briefing on the objection, this Court ordered the parties to provide additional briefing on an additional argument raised by Defendant. (Docket #25). As discussed further below, the parties did not see fit to comply with that order, and so the briefing remains incomplete. Regardless, the time is now ripe to address the Report and Defendant's motion.


         When reviewing a magistrate's recommendation, the Court is obliged to analyze the recommendation de novo. 28 U.S.C. § 636(b)(1)(C). Thus, the Court can “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id. In other words, the Court's de novo review of Magistrate Jones' findings and recommendations is not limited to his legal analysis alone; rather, the Court may also review his factual findings, and accept, reject, or modify those findings as it sees fit based upon the evidence. Id.

         5. ANALYSIS

         In his objection, Defendant offers two arguments in favor of dismissal of this case. The first is the same legal argument he presented to Magistrate Jones. The second is a factual argument based on his contention that he left the country prior to his November 12 deadline. The Court will address the contentions separately below.[1]

         5.1 ...

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