USA v. Chavarria-Lopez

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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Civil Action No. 25-CR-10233-AK
)
LUIS FELIPE CHAVARRIA-LOPEZ, )
)
Defendant. )
)
MEMORANDUM AND ORDER ON LUIS FELIPE CHAVARRIA-LOPEZ’S
MOTION TO DIMISS THE INDICTMENT
BASED ON DUE PROCESS VIOLATIONS
ANGEL KELLEY, D.J.
On June 5, 2025, Mr. Luis Felipe Chavarria-Lopez was charged by Indictment with one
count of Unlawful Reentry of a Deported Person pursuant to 8 U.S.C. § 1326(a). [Dkt. 1]. On
December 11, 2025, Mr. Chavarria-Lopez filed a Motion to Dismiss the Indictment based on
Due Process Violations during the deportation proceeding on which the charge relied. [Dkt. 59].
The government opposed. [Dkt. 74]. On January 31, 2026, Mr. Chavarria-Lopez replied to the
government’s Opposition [Dkt. 76] and the government filed a Sur-Reply on February 6, 2026.
[Dkt. 80]. On February 9, 2026, this Court held a Motion Hearing on the pending Motion. [Dkt.
81]. For the following reasons, Mr. Chavarria-Lopez’s Motion to Dismiss the Indictment based
on Due Process Violations is GRANTED.
I. BACKGROUND
The Court will provide a brief recitation of the facts necessary to resolve the instant
Motion.
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A. Mr. Chavarria-Lopez’s History
Mr. Chavarria-Lopez, a Guatemalan national, first entered the United States on
September 16, 2013, in Texas. Five days later, Mr. Chavarria-Lopez was ordered removed via
an expedited removal administrative proceeding, purportedly conducted by Border Patrol Agent
Edward W. Mort. About a month later, Mr. Chavarria-Lopez reentered the country and was
again apprehended. After his prior order of removal was reinstated, he was removed from the
country for a second time.
Some time in April of 2014, Mr. Chavarria reentered the country and he has lived
continuously in Massachusetts since. Mr. Chavarria-Lopez works for a landscaping company
and has been filing taxes since receiving an ITIN number from the Internal Revenue Service in
2020.
B. Expedited Removal Proceedings Under 8 U.S.C. § 1225
8 U.S.C. § 1225, in certain circumstances, allows immigration officers to determine if an
undocumented person is inadmissible and enter a removal order, generally without any type of
hearing or review. Specifically, immigration officers can initiate expedited removal proceedings
against those undocumented people arriving in the United States, during which, as relevant here,
the officer must determine if the arriving person does not possess a valid entry document. 8
U.S.C. §§ 1225(a)(3), (b)(1)(A)(i); 1182(a)(7)(A)(i). “Unless an alien professes a fear of
persecution or claims to be a lawful permanent resident (LPR), an expedited removal order ‘is
not subject to administrative appeal.’ However, the Attorney General has the discretion to
provide a type of statutory relief to certain aliens: withdrawal of application for admission. When
an individual is permitted to ‘withdraw’ his application for admission, he may leave voluntarily
and without a removal order, and thus without facing formal immigration consequences.” United
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States v. Raya-Vaca, 771 F.3d 1195, 1200 (9th Cir. 2014) (citations omitted).
The Department of Homeland Security has codified specific regulations regarding the
procedure used during an expedited removal. Specifically, “[t]he regulations governing
expedited removal proceedings codify, in mandatory terms, the immigration officer’s duty to
inform the alien of the charge against him and to allow the alien to review the sworn statement
prepared in his name.” Id. at 1204. According to the regulations,
An alien who is arriving in the United States . . . who is determined to be
inadmissible . . . shall be ordered removed from the United States in accordance
with section 235(b)(1) of the Act. In every case in which the expedited removal
provisions will be applied and before removing an alien from the United States
pursuant to this section, the examining immigration officer shall create a record of
the facts of the case and statements made by the alien. This shall be accomplished
by means of a sworn statement using Form I–867AB, Record of Sworn Statement
in Proceedings under Section 235(b)(1) of the Act. The examining immigration
officer shall read (or have read) to the alien all information contained on Form I–
867A. Following questioning and recording of the alien’s statement regarding
identity, alienage, and inadmissibility, the examining immigration officer shall
record the alien's response to the questions contained on Form I–867B, and have
the alien read (or have read to him or her) the statement, and the alien shall sign
and initial each page of the statement and each correction. The examining
immigration officer shall advise the alien of the charges against him or her on
Form I–860, Notice and Order of Expedited Removal, and the alien shall be given
an opportunity to respond to those charges in the sworn statement. After obtaining
supervisory concurrence in accordance with paragraph (b)(7) of this section, the
examining immigration official shall serve the alien with Form I–860 and the
alien shall sign the reverse of the form acknowledging receipt. Interpretative
assistance shall be used if necessary to communicate with the alien.
8 C.F.R. § 235.3(b)(2)(i). In addition to requiring the name of the officer before whom the
proceeding occurred, the officer must identify the language used for the proceeding and if the
services of an interpreter were used. Additionally, the Form I-867 reads as follows:
I am an officer of the United States Department of Homeland Security. I am
authorized to administer the immigration laws and to take sworn statements. I
want to take your sworn statement regarding your application for admission to the
United States. Before I take your statement, I also want to explain your rights, and
the purposes and consequences of this interview.
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You do not appear to be admissible or to have the required legal papers
authorizing your admission to the United States. This may result in your being
denied admission and immediately returned to your home country without a
hearing. If a decision is made to refuse your admission into the United States, you
may be immediately removed from this country, and if so, you may be barred
from reentry for a period of 5 years or longer.
This may be your only opportunity the present information to me and the
Department of Homeland Security to make a decision. It is very important that
you tell me the truth. If you lie or give misinformation, you may be subject to
criminal or civil penalties, or barred from receiving immigration benefits or relief
now or in the future.
Except as I explain to you, you are not entitled to a hearing or review.
U.S. law provides protection to certain persons who face persecution, harm or
torture upon return to their home country. If you fear or have a concern about
being removed from the United States or about being sent home, you should tell
me so during this interview because you may not have another chance. You will
have the opportunity to speak privately and confidentially to another officer about
your fear or concern. That officer will determine if you should remain in the
United States and not be removed because of that fear.
Until a decision is reached in your case, you will remain in the custody of the
Department of Homeland Security.
Any statement you make may be used against you in this or any subsequent
administrative proceeding.
[Dkt. 60-1 at 7]. The sworn statement captures a series of questions from the administering
officer, with answers recorded immediately after. The form is then signed by the undocumented
person and the administering officer, with the officer attesting that the statement was “[s]worn
and subscribed to before” them. [Id. at 10].
C. Mr. Chavarria-Lopez’s Expedited Removal
An initial review of the I-867 from Mr. Chavarria-Lopez’s 2013 expedited removal
seemingly shows a standard and proper exercise of authority by Border Patrol Agent Edward W.
Mort (“BPA Mort”) at the Kingsville, Texas, Border Patrol Station. [Id. at 7]. BPA Mort
indicated the proceeding was conducted in Spanish with no interpreter, and the Form was signed
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on each page by Mr. Chavarria-Lopez, with BPA Mort signing the last page. However, during
the course of this litigation, it has become clear that many of the statements and representations
made in the I-867 are untrue and, in fact, no one can confirm what happened other than Mr.
Chavarria-Lopez.
According to the government, “[i]n preparing this Opposition the government has learned
that an immigration officer other than the officer who signed the forms conducted the expedited
removal process with the defendant by videoconference and that the officer who signed the
forms was not present.” [Dkt. 74 n.2]. Instead, BPA Mort was somewhere else in the facility. In
its Sur-Reply, the government states that “the defendant’s A-file indicates a Border Patrol agent
in El Paso conducted the proceeding with the defendant by videoconference.” [Dkt. 80 at 5].
That indication in the A-file was only signed by BPA Mort, who otherwise fabricated his
knowledge of the proceeding.
At the Motion Hearing, the government stated that the expedited removal was conducted
by Border Patrol Agent Martin Ortiz (“BPA Ortiz”). Of note, BPA Mort remembers little else
other than that he was not in the room during this video conference. Meanwhile, the government
has not been able to find or speak with BPA Ortiz. In fact, at a prior status conference, the
government stated, “they’ve been trying to identify and locate [BPA Ortiz]. And there certainly
are people with that name in the agency at this time but none of them turn out to be the same
person.” Of further concern, the government stated, “I actually haven’t represented that Ortiz
spoke to him in Spanish. I think that’s probably what happened, but I don’t know that because
we haven’t spoken to – we haven’t been able to find Ortiz.”
Despite the clear misrepresentations in the Forms, the government argues the Court
should assume that proper procedure was followed and the Form I-867 was completed
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accurately, as someone needed to speak to Mr. Chavarria-Lopez to populate the Form with the
accurate answers that were provided. Conversely, Mr. Chavarria-Lopez does not ask the Court
to make an assumption. Instead, he provided an affidavit stating
While detained I was spoken to in English and given documents written in
English to sign. I understood that the officers who had me in custody were going
to send me back to Guatemala and wanted me to sign the documents, so I signed
where I was told to sign. I did not know what I signed because I could not read
English. No one translated what was written in the documents to Spanish so I did
not understand what was written in the documents. I was not told that I could have
a lawyer help me. I was not told that by entering the United States I was
technically applying to be admitted and that I could withdraw that application for
admission. I did not know what removal proceedings were and did not know that I
was being removed from the United States pursuant to formal removal
proceedings.
[Dkt. 60-3 at 2]. The government either does not have or has not provided any information to
dispute Mr. Chavarria-Lopez’s affidavit.
II. LEGAL STANDARD
As stated by the parties, Mr. Chavarria-Lopez is charged by indictment with one count of
unlawful reentry of an undocumented person, in violation of 8 U.S.C. § 1326(a). [Dkt. 1]. An
undocumented person violates Section 1326(a) if he:
(1) has been denied admission, excluded, deported, or removed or has departed
the United States while an order of exclusion, deportation, or removal is
outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless
(A) prior to his reembarkation at a place outside the United States or his
application for admission from foreign contiguous territory, the Attorney
General has expressly consented to such alien’s reapplying for admission; or
(B) with respect to an alien previously denied admission and removed, unless
such alien shall establish that he was not required to obtain such advance
consent under this chapter or any prior Act[.]
8 U.S.C. § 1326(a). Mr. Chavarria-Lopez challenges his prosecution under 8 U.S.C. § 1326(d),
which codified the Supreme Court’s decision in United States v. Mendoza-Lopez, which allows
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the accused to challenge the validity of their underlying deportation. 481 U.S. 828, 837-38, 841
(1987) (“Depriving an alien of the right to have the disposition in a deportation hearing reviewed
in a judicial forum requires, at a minimum, that review be made available in any subsequent
proceeding in which the result of the deportation proceeding is used to establish an element of a
criminal offense.”). In brief, “[u]nder Mendoza-Lopez, ‘a person who is prosecuted for illegal
reentry based on a previous order of deportation must have meaningful review of the validity of
his or her deportation order.’” United States v. Ferreira, No. 17-CR-10267-IT, 2019 WL 418845,
at *7 (D. Mass. Feb. 1, 2019) (quoting United States v. Luna, 436 F.3d 312, 317 (1st Cir. 2006)).
To successfully attack the underlying deportation upon which the felony charge relies,
the accused must demonstrate 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). “The elements of section 1326(d) are conjunctive, and [a defendant] must
satisfy all of those elements in order to prevail on a collateral challenge of his removal order.”
United States v. Soto-Mateo, 799 F.3d 117, 120 (1st Cir. 2015).
III. DISCUSSION
A. Exhaustion of Administrative Remedies and Deprivation of the Opportunity
for Judicial Review
As stated in the government’s Opposition, “[t]he defendant’s expedited removal was
conducted pursuant to 8 U.S.C. § 1225(b)(1)(A)(i), a statute that precludes both administrative
and judicial review. Courts have thus concluded that a defendant seeking to attack a removal
order issued pursuant to the expedited removal statute automatically satisfies the first and second
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prongs of § 1326(d).” [Dkt. 74 at 6-7 (citing Ferreira, 2019 WL 418845, at *7-8; Raya-Vaca, 771
F.3d at 1202; United States v. Barajas Alvarado, 655 F.3d 1077, 1082 (9th Cir. 2011)]. As a
result, the only element in dispute is if the entry of the 2013 expedited removal order was
fundamentally unfair.
B. Fundamental Unfairness
To establish fundamental unfairness, “courts uniformly require a showing of procedural
error and prejudice.” Luna, 436 F.3d at 319.
1. Procedural Error
“[I]n United States v. Loaisiga, the First Circuit ‘assume[d] without deciding that it
would be a fundamental flaw under Mendoza-Lopez to fail to advise one threatened with
deportation of his statutory right to self-obtained counsel,’ noting that in immigration matters, ‘it
has been left primarily to Congress and to INS regulations to dictate the course of
proceedings.’ . . . Without further guidance from the First Circuit, the [C]ourt proceeds first by
determining whether the procedures here violated those mandated by Congress and INS
regulations.” Ferreira, 2019 WL 418845, at *8 (quoting United States v. Loaisiga,104 F.3d 484,
486 (1st Cir. 1997)).
As stated above, the regulation requires the examining immigration officer to create, via a
sworn statement, a record of the facts and statements made by the person subject to removal. 8
C.F.R. § 235.3(b)(2)(i). This sworn statement must be captured using Form I-867AB, Record of
Sworn Statement in Proceedings under Section 235(b)(1) of the Act, and “must record
statement[s] regarding identity, alienage, and inadmissibility.” Id. The immigration officer must
read or have read to the accused all of the information on the Form I-867A, which includes who
the officer is, the rights of the accused, and the purposes and consequences of the interview. Id.;
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[Dkt. 60-1 at 7]. The Form also informs the accused that they are applying for admission and do
not appear to be admissible, and if they are refused admission, they may be barred from reentry
for a period of five years or longer. [Dkt. 60-1 at 7]. Finally, the immigration officer must also
“advise the alien of the charges against him or her on Form I–860, Notice and Order of
Expedited Removal, and the alien shall be given an opportunity to respond to those charges in
the sworn statement. After obtaining supervisory concurrence . . . , the examining immigration
official shall serve the alien with Form I–860 and the alien shall sign the reverse of the form
acknowledging receipt.” 8 C.F.R. § 235.3(b)(2)(i). Importantly, “[i]nterpretative assistance shall
be used if necessary to communicate with the alien.” Id.
Put plainly, the Court finds not only that the regulation was not followed but that it was
entirely ignored and discarded. The government asks the Court to believe that an unknown agent
they cannot find, BPA Ortiz, complied with the regulation, reading the admonitions included in
the Forms I-860 and I-867 and accurately recording Mr. Chavarria-Lopez’s responses. The only
evidence this occurred are the statements and signature of BPA Mort, who misrepresented that
he conducted the expedited removal proceeding in Spanish, making such claims when he was not
even in the room. The government concedes that BPA Mort was elsewhere in the building when
BPA Ortiz was allegedly conducting the removal process in Spanish—one of the only things that
BPA Mort remembers. Of note, however, the government cannot even confirm that BPA Ortiz
conducted the proceeding in Spanish, if it occurred. As the government stated at the Motion
Hearing, “I actually haven’t represented that Ortiz spoke to him in Spanish. I think that’s
probably what happened, but I don’t know that because we haven’t spoken to – we haven’t been
able to find Ortiz.”
The Court finds little reason to credit all or any part of the government’s assertions in
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light of the identified falsities and inconsistencies. Conversely, Mr. Chavarria-Lopez provided a
sworn affidavit stating that he does not speak English, that he was only spoken to and given
documents written in English that were never translated, and that the officer made clear he would
be sent back to Guatemala. [Dkt. 60-3 at 2]. He was not told that he could have the support of a
lawyer, that he was applying for admission, or that he was in removal proceedings. [Id.].
In light of this evidence, the Court does not only find that error occurred, but that
whatever occurred during Mr. Chavarria-Lopez’s 2013 removal dispensed with the regulation
altogether. This is entirely sufficient procedural error to satisfy the first prong of fundamental
unfairness.
2. Prejudice
Turning to prejudice, “[t]he standard . . . in this context is ‘a reasonable likelihood that
the result would have been different if the error in the deportation proceeding had not occurred.’”
Luna, 436 F.3d at 321 (quoting Loaisiga, 104 F.3d at 487). While the parties disagree about the
importance of the causal nexus between the procedural error and prejudice to satisfy the Luna
standard, the Court finds it unnecessary to resolve this dispute, as there is a causal nexus between
the procedural errors and the prejudice here.
The government attempts to cabin the prejudice analysis to the agents’ failure to inform
Mr. Chavarria-Lopez of his ability to apply for discretionary relief, which courts have found is
not a procedural error. [Dkts. 74 at 8-11; 80 at 2-5 (citing Ferreira, 2019 WL 418845; Soto-
Mateo, 799 F.3d at 123)]. Thus, as the argument goes, any prejudice that resulted from failing to
apply for discretionary relief cannot be tied to sufficient procedural error; however, that ignores
the nature of the procedural error here—namely, the complete disregard for the regulation and
the subsequent false attestations to the following of proper procedure. This was not simply a
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failure to inform of discretionary relief. Instead, Mr. Chavarria-Lopez was not told of the
charges against him or given an opportunity to respond. He was not even aware that he was
applying for admission or that there would be consequences from being found inadmissible
based on his application. Instead, he was made to believe that deportation was a foregone
conclusion and that there were not otherwise any rights or remedies. He believed that the
decision was already made and there were no other options. Had Mr. Chavarria-Lopez been
aware of the charges against him and his opportunity to respond in his native language, or had he
been aware that he was applying for admission and the consequence of being found inadmissible
was that he could not return to the United States for five years or more, it is reasonable to believe
he would have asked for alternatives to applying for admission, including withdrawal of his
application for removal. To argue that the failure to follow the regulation in its entirety would
not result in such prejudice would render the regulation entirely superfluous.
At base, if the government disregards its own regulation during removal proceedings,
failing to provide the most basic guardrails to ensure the accuracy of the forms it uses to record
expedited removals, the Court must consider the obvious consequences to the accused’s right to
notice, to respond, and to request relief. To find otherwise would mean agents could summarily
remove those attempting to enter the country without any process at all—agents could ask the
questions and provide the answers without anyone or anything stopping them. When, as here,
agents then take steps to hide the lack of proper process, the fundamental unfairness is
compounded.
In light of the above, the Court finds that the prejudice—Mr. Chavarria-Lopez’s lack of
understanding of the charges against him, his right to respond, and his ability to avoid a formal
finding of inadmissibility—was the result of the procedural errors—the disregard of INS’s own
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regulations and the subsequent obfuscation of their failure to follow the regulation. Accordingly,
the Court must consider if there was a reasonable likelihood that Mr. Chavarria-Lopez would
have been successful in his request for withdrawal of his application for admission.
3. Withdrawal of Removal
As stated by Mr. Chavarria-Lopez, “[i]n determining whether withdrawal was plausible
in Raya-Vaca, the Ninth Circuit looked to the INS Inspector’s Field Manual, which instructs
officers to ‘consider all facts and circumstances related to the case to determine whether
permitting withdrawal would be in the best interest of justice.’” [Dkt. 60 at 12 (citing Raya-Vaca,
771 F.3d at 1207)]. The Manual enumerates six non-exhaustive factors that officers should
consider: “(1) the seriousness of the immigration violation; (2) previous findings of
inadmissibility; (3) intent on the part of the applicant to violate the law; (4) ability to easily
overcome the grounds of inadmissibility; (5) age or poor health of the applicant; and (6) other
humanitarian or public interest considerations.” Barajas-Alvarado, 655 F.3d at 1090 (citing INS
Inspector’s Field Manual § 17.2(a) (2001)). “[A]n expedited removal order should ordinarily be
issued, rather than permitting withdrawal, in situations where there is obvious, deliberate fraud
on the part of the applicant.” Id.
A review of these factors, and other considerations, supports a reasonable belief that Mr.
Chavarria-Lopez’s application for withdrawal would have been granted. First, Mr. Chavarria-
Lopez did not commit any obvious or deliberate fraud. While he entered the country illegally, he
did not use any false documents or otherwise make any false statements. He also did not use
violent means. Second, at the time of Mr. Chavarria-Lopez’s expedited removal, he did not have
any prior formal removal orders. Third, while it is true that Mr. Chavarria-Lopez intended to
violate the law by entering the country illegally, he did not otherwise intend to violate the law—
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his stated intention was to enter the country to find work, not to commit illegal acts such as the
sale of illicit goods or fraud. See United States v. Vieira-Ferel, No. 17-CR-00427-JO, 2019 WL
3558169, at *5 (D. Or. Aug. 5, 2019). As to the fourth and fifth factors, it is not clear that Mr.
Chavarria-Lopez could easily overcome the grounds for admissibility and his relative youth and
good health do not counsel the granting of his application. Finally, the record is relatively
underdeveloped as to other humanitarian or public interest considerations at the time of Mr.
Chavarria-Lopez’s expedited removal. Thus, a review of the enumerated factors leaves some
weighing in favor of granting Mr. Chavarria-Lopez’s application and some weighing against.
With that said, other non-enumerated factors considered by other courts as part of their
review of “all facts and circumstances related to the case” strongly support a reasonable belief
that Mr. Chavarria-Lopez’s application would have been granted had the procedural errors not
occurred. Mr. Chavarria-Lopez had no criminal history at the time of his removal, let alone the
“fairly minimal” criminal history considered in other cases in which withdrawal was found
plausible. See, e.g., Raya-Vaca, 771 F.3d at 1209; United States v. Grande, 623 Fed. Appx. 858,
861 (9th Cir. 2015); United States v. Ruiz, No. 14-CR-00466-MMM, 2015 WL 13573882, at *6-
8 (C.D. Cal. July 2, 2015). Further, Mr. Chavarria-Lopez has identified several other individuals
who were granted withdrawal despite a plethora of additional negative considerations. [Dkt. 60
at 15-17]. Finally, known statistics also weigh in favor of a reasonable likelihood that the
request to withdraw his application for admission would have been granted. See Raya-Vaca, 771
F.3d at 1209 (“In fiscal year 2004, approximately 70 percent of the individuals subject to
expedited removal proceedings were allowed to withdraw their applications. The percentage
dropped thereafter, but even in fiscal year 2008 (after which DHS stopped publishing the data)
fully 44 percent of aliens subject to expedited removal proceedings were afforded this
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relief. . . . [T]he data provide relevant context for the frequency with which withdrawal was
permitted and, when considered in conjunction with other individualized evidence supporting the
plausibility of relief, cuts in Raya–Vaca's favor.”); Ruiz, 2015 WL 13573882, at *4 (same);
United States v. Gonzales-Lopez, No. 18-CR-00213, 2020 WL 5210923, at *7 (N.D. Cal. Sept.
1, 2020) (same).
On a final note, the government claims that testimony in another case that withdrawal is
only granted to those from a bordering country is unpersuasive. No such evidence has been
presented here and subsequent policies, including the removal of non-Mexican nationals to
Mexico and other countries of which they are not citizens, cut against the veracity of this claim.
Additionally, an appeal to 8 C.F.R. § 1235.4, which states that “[p]ermission to withdraw an
application for admission should not normally be granted unless the alien intends and is able to
depart the United States immediately,” is similarly unavailing. In this case, Mr. Chavarria-Lopez
was removed to Guatemala within days, establishing his intent and ability to depart with
immediacy.
In light of both the enumerated and unenumerated factors, including statistics that show
that a significant portion of the applications for withdrawal during expedited removal
proceedings were granted at that time, it is reasonably likely that withdrawal of Mr. Chavarria-
Lopez’s application would have been allowed had the procedural errors described above not
occurred. Consequently, there was both procedural error and prejudice, meaning the removal
order was fundamentally unfair.
Taken together, Mr. Chavarria-Lopez has successfully demonstrated: (1) he 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 him of the
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opportunity for judicial review; and, (3) the entry of the order was fundamentally unfair. Mr.
Chavarria-Lopez has successfully challenged his removal order under 8 U.S.C. § 1326(d) and the
indictment must be dismissed.
C. Mr. Chavarria-Lopez’s October 2013 Reinstatement Order
On a final note, Mr. Chavarria-Lopez’s October 2013 removal is a reinstatement of his
September 2013 expedited removal, pursuant to INA § 241(a)(5). “‘Reinstatement orders do not
exist independent and separate from their prior orders of removal but are instead explicitly
premised on the prior order.’ Accordingly, ‘a successful collateral attack on a removal order
precludes reliance on a reinstatement of that same order in criminal proceedings for illegal
reentry.’” United States v. Barbosa, 368 F. Supp. 3d 172, 177 (D. Mass. 2019) (first quoting
United States v. Charleswell, 456 F.3d 347, 352 (3d Cir. 2006); then quoting United States v.
Arias-Ordonez, 597 F.3d 972, 982 (9th Cir. 2010)).
Here, Mr. Chavarria-Lopez’s successful challenge to his September 2013 expedited
removal precludes reliance on the October 2013 reinstatement of his removal.
IV. CONCLUSION
Mr. Chavarria-Lopez has successfully challenged his September 2013 removal order
under 8 U.S.C. § 1326(d). That removal cannot serve as the predicate for his conviction under 8
U.S.C. § 1326(a). For the foregoing reasons, Mr. Chavarria-Lopez’s Motion to Dismiss the
Indictment based on Due Process Violations [Dkt. 59] is GRANTED. At Mr. Chavarria-
Lopez’s request, the Court will stay entry of this Order for two weeks to allow Mr. Chavarria-
Lopez to communicate with immigration counsel.
In light of this Order, Mr. Chavarria-Lopez’s Motion to Dismiss based on the Statute of
Limitations [Dkt. 17] and Third Motion to Dismiss based on the Appointments Clause [Dkt. 63]
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are DENIED AS MOOT. Similarly, the government’s Motions in Limine to Preclude
Introduction of Tax Documents [Dkt. 48] and to Preclude Evidence or Argument Designed to
Elicit Jury Nullification [Dkt. 49] are DENIED AS MOOT.
SO ORDERED.
Dated: March 13, 2026 /s/ Angel Kelley
Hon. Angel Kelley
United States District Judge
Case 1:25-cr-10233-AK Document 82 Filed 03/13/26 Page 16 of 16