United States District Court, D. Delaware
GREGORY M. SLEET, District Judge.
The defendant Bekir Buluc (previously known as Bekir Celebi) is a citizen of Turkey who has been deported or removed from the United States by the government four times. On or about September 4, 2012, Immigration & Customs Enforcement ("ICE") agents apprehended the defendant in Dover, Delaware. (D.I. 1.) The next day a Criminal Complaint was filed against the defendant, (id.), and on September 25, 2012, he was charged in a one count Indictment with illegal reentry in violation of 8 U.S.C § 1326(a), (D.I. 7). Presently before the court is the defendant's Motion to Dismiss the Indictment, which argues that the underlying in absentia deportation order is constitutionally invalid and cannot serve as a basis for the government's section 1326 prosecution because the defendant never received notice of the deportation hearing. (D.I. 24.) For the reasons that follow, the court denies the motion.
On March 11, 1992, the defendant obtained a tourist visa under the name Bekir Celebi and entered the United States. (D.I 24 at 2.) On November 30, 1993, the defendant executed an asylum application seeking asylum due to a fear of retaliation and persecution in his home country of Turkey for an incident that occurred while he was a mandatory member of the Turkish army. (Id.) The defendant hired an attorney, Sheldon Walker, to represent him in the asylum proceedings. The asylum application was filed with United States Citizenship and Immigration Services ("USCIS") on January 27, 1994, but it appears that USCIS did not process the application and the defendant never received notice of an asylum hearing. (Id.)
On January 11, 1994, the defendant was apprehended for overstaying his tourist visa and personally served with an Order to Show Cause. (Id.) The Order to Show Cause informed the defendant that he would receive a hearing, and that a separate notice advising him of the date and time of the hearing would be "mailed to the address provided by the [defendant]."(D.I. 24, Ex. B.) At the time of his arrest, the defendant provided 2504 Perkiomen Avenue, Mt. Penn, Pennsylvania as his address. (Id.)
A deportation hearing was scheduled for May 11, 1994. On April 19, 1994, a Notice of Hearing that had been mailed to the defendant's address was returned as unclaimed. The deportation hearing was rescheduled for June 21, 1994 and a new notice was mailed to the same address, but it returned as unclaimed on June 9, 1994. (Id. at 3.) The defendant failed to appear at the June 21, 1994 hearing and the Immigration Judge ordered the defendant deported in absentia. (Id. at 4.) On June 23, 1994, the defendant did receive notice of the Immigration Judge's Order by certified mail at the 2504 Perkiomen Avenue address. (D.I. 27, Ex. 1.)
On November 2, 1995, the defendant was apprehended by Immigration and Naturalization Service ("INS") agents and arrested. He provided a new address at the time of his arrest, but stated that he resided at 2504 Perkiomen Avenue until October 1994. ( Id., Ex. 2.) While he was detained, the defendant's counsel, Guy T. O'Donnell, filed a Motion to Reopen Asylum Petition and for Stay of Deportation. However, O'Donnell incorrectly sent the Motion to the INS Department and it was not received by the Immigration Court until November 22, 1995, five days after the defendant had been deported on November 17, 1995. (D.I. 24 at 4; D.I. 30 at 2.)
While in Turkey, the defendant legally changed his name to Bekir Buluc. He obtained another tourist visa on July 17, 1996 and returned to the United States. (D.I. 24 at 4.) The defendant subsequently married a U.S. citizen and from 1998 through 2010 attempted to adjust his immigration status. ( Id. at 5.) In his applications, however, the defendant certified that he had never been deported from the United States, and in one instance filed a handwritten affidavit that he had "never been arrested, " "never been handcuffed, " and was only fingerprinted in connection with a 1997 green card application. (D.I. 27 at 3; id., Exs. 3, 4.)
On May 6, 2010, the defendant was arrested in Greenwood, Delaware, and ordered removed for overstaying his 1996 visa (issued to Bekir Buluc). ( Id. at 4.) ICE processed that deportation order without regard to the defendant's first deportation in 1994. ( Id., Ex. 6.) On July 13, 2010, he was served a Warrant of Removal/Deportation and deported to Turkey for the second time. (D.I. 24 at 5.)
The defendant returned to the United States for the third time, and was arrested in the Southern District of Texas on December 20, 2010. He pled guilty to a misdemeanor charge for improper entry by an alien and was sentenced to ten days incarceration. On February 10, 2011, he refused to board the airplane for his deportation and was placed in custody of ICE. The defendant claimed a fear of returning to Turkey. (D.I. 27 at 4.) Shortly thereafter, he retained legal counsel, Jorge Trevino, to assist him in resolving the June 21, 1994 in absentia deportation order. (D.I. 24 at 5.)
On June 27, 2011, the defendant was provided a Reasonable Fear Hearing. (D.I. 27 at 4.) The defendant's counsel, Trevino, did not submit any evidence to USCIS on behalf of the defendant, and did not physically attend the scheduled Reasonable Fear Hearing. (D.I. 24 at 5-6.) Rather, Trevino was teleconferenced into the hearing at some point after it began. (See D.I. 24 at 6; D.I. 27 at 4.) The asylum officer stated that the defendant's testimony was "sufficiently detailed, consistent and plausible in material respects and therefore is found credible, " but determined that there was "no reasonable fear of persecution... [or] torture established." (D.I. 27, Ex. 7.) On August 25, 2011, an immigration judge reviewed the reasonable fear proceedings, affirmed the asylum officer's decision, and ordered the case returned for removal proceedings. ( Id., Ex. 8.)
Immigration officials reinstated the June 21, 1994 deportation order, served the defendant a Warrant of Removal/Deportation, and the defendant was removed to Turkey for the third time on October 19, 2011. Less than two weeks later, on October 31, 2011, the defendant was apprehended by Border Patrol Agents. On December 6, 2011, the defendant was served with a Warrant of Removal/Deportation and removed to Turkey for the fourth time. On September 4, 2012, the defendant was apprehended by ICE agents. That arrest led to the instant Indictment. (D.I. 24 at 6.)
On November 20, 2013, after the briefing for the instant motion to dismiss was complete, the Executive Office for Immigration Review denied the defendant's recently filed motion to rescind the June 21, 1994 ...