USA v. Ramirez-Velazquez

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
United States of America, 	Case No. 3:24-cr-105
Plaintiff,
v. 	MEMORANDUM OPINION
AND ORDER
Cesar Ramirez-Velazquez,
Defendant.
I. 	INTRODUCTION
Defendant Cesar Ramirez-Velazquez 1 has filed a second motion to stay these proceedings
while he attempts to exhaust his administrative remedies with respect to a 2009 order from the
Cleveland, Ohio Immigration Court ordering him removed for entering the United States illegally.
(Doc. No. 43). I denied Ramirez’s first motion to stay because his alleged failure to receive timely
notice of his right to appeal the immigration court’s in absentia removal order was not a permissible
statutory basis to reverse or vacate the removal order. (Doc. No. 24).
The government filed a brief in opposition to Ramirez’s second motion, (Doc. No. 50), and
Ramirez filed a brief in reply. (Doc. No. 51). For the reasons stated below, I grant Ramirez’s
motion.
1 The defense notes that the Defendant’s “correct legal name is Ramirez-Rincon” and that the
government included that name as well as Ramirez-Velazquez in the superseding indictment. (Doc.
No. 43 at 1 n.1) (citing Doc. No. 24). I will adopt the defense’s use of the name “Ramirez” for the
purposes of this decision.
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II. 	DISCUSSION
I previously briefly summarized the relevant factual history underlying Ramirez’s request for
a stay:
On May 4, 2009, an immigration judge ordered Ramirez-Velazquez be removed from
the United States because he had entered the country illegally. (Doc. No. 20-1). The
removal order was entered in absentia because Ramirez-Velazquez failed to appear at
the scheduled hearing. (Id. at 1). See also 8 U.S.C. § 1229a(b)(5) (permitting removal
in absentia if there is “clear, unequivocal, and convincing evidence that . . . written
notice [of the hearing] was . . . provided and that the alien is removable”). Ramirez-
Velazquez was removed from the United States on June 2, 2009. (Doc. No. 20-2 at
1). He reentered the country four days later and was removed again on June 7, 2009.
(Id.; Doc. No. 20-3).
Ramirez-Velazquez subsequently reentered the United States once again. He was
cited by the Ohio State Highway Patrol on May 13, 2023 for speeding and suspicion
of operating a vehicle while intoxicated, and he was arrested by an officer with the
United States Border Patrol on May 19, 2024. (Doc. No. 20 at 3-4). Ramirez-
Velazquez was charged by indictment with illegal reentry in violation of 8 U.S.C. §
1326, among other offenses. (Doc. No. 24).
(Doc. No. 27 at 1-2).
Ramirez renews his argument a stay is appropriate because it will permit him to collaterally
attack the in absentia removal order in these proceedings as a defense to the illegal reentry charge. He
contends it is appropriate for me to reconsider my earlier denial of a stay because his first motion
mistakenly included factual errors. (See Doc. No. 43 at 2-3).
Section 1326(d) states:
In a criminal proceeding under this section, an alien may not challenge the validity of
the deportation order described in subsection (a)(1) or subsection (b) 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).
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As I previously noted, “judicial review ‘of an order entered in absentia under this paragraph
shall . . . be confined to (i) the validity of the notice provided to the alien, (ii) the reasons for the
alien’s not attending the proceeding, and (iii) whether or not the alien is removable.’” (Doc. No. 27
at 3) (quoting 8 U.S.C. § 1229a(b)(5)(D)). I concluded a stay was not appropriate because Ramirez
did not offer any challenge to the validity of the pre-hearing notices issued by the immigration court
and, therefore, there were no facts in the record from which Ramirez could meet his statutorily
required burden to show his removal proceedings improperly deprived him of an opportunity for
judicial review or that the removal order issued after he failed to appear for a hearing of which he
had written notice was fundamentally unfair. (Doc. No. 27 at 3).
But defense counsel subsequently learned that Ramirez, through his immigration counsel,
had in fact filed a motion on July 11, 2024, in which Ramirez claimed he never received notice of the
date and time of his originally scheduled hearing, nor of the three ensuing changes to the date and
time of the removal hearing. (Doc. No. 43 at 2-3). (See also Doc. No. 46) (“Motion to Rescind In
Absentia Removal Order and Reopen Proceedings”) (filed under seal). The immigration court
denied the motion and Ramirez’s appeal of that decision remains pending. (Doc. No. 43 at 3).
The government objects to a stay, arguing Ramiez’s pursuit of his administrative remedies
related to his 2009 removal order is not relevant to the illegal reentry charge in this case. (Doc. No.
50). But, as the Sixth Circuit has observed, if Ramirez were to be successful in overturning his 2009
removal order, he “would overcome his charge of unlawful reentry.” United States v. Flores-Perez, 1
F.4th 454, 456 (6th Cir. 2021) (citing United States v. Palomar-Santiago, 593 U.S. 321, 323-24 (2021)).
Section 1326(d) requires Ramirez to exhaust his administrative remedies before he is
permitted to pursue his argument that the 2009 removal order is invalid. See Flores-Perez, 1 F.4th at
457 (A defendant’s “failure to satisfy any one of [§ 1326(d)’s three requirements] defeats his
collateral challenge.”). I conclude Ramirez may not be deprived of an opportunity to raise this
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defense simply because the Board of Immigration Appeals has failed to issue a decision concerning
his pending appeal.
As I noted above, Ramirez has been indicted on three other offenses as well: two counts of
possession of a fraudulent identification document in violation of 18 U.S.C. § 1546(a) and one count
of misuse of a Social Security Number in violation of 42 U.S.C. § 408(a)(7)(B). (See Doc. No. 24 at
2-3). While Ramirez does not argue that the alleged invalidity of the 2009 removal order also is a
defense to these additional charges, I conclude, in the interest of judicial efficiency, that this case
must be stayed as to those counts as well.
III. 	CONCLUSION
For the reasons set forth above, I grant Defendant Cesar Ramirez-Velazquez’s motion for a
stay. (Doc. No. 43). Further, I conclude that the ends of justice served by granting the motion to
stay outweigh the best interest of the public and the defendant in obtaining a speedy trial such that
time shall be excluded from the Speedy Trial Act pursuant to 18 U.S.C. § 3161(h) until the stay is
lifted. Ramirez shall file a status report within 10 days of receiving notice of a Board of Immigration
Appeals decision on his pending appeal or within 60 days of the date of this Memorandum Opinion
and Order, whichever occurs first. The August 24, 2026 jury trial is vacated.
So Ordered.
s/ Jeffrey J. Helmick
United States District Judge
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