UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 20-4025 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RODRIGO MARTINEZ-MENDOZA, a/k/a Rodrigo Martinez-Martinez, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:17-cr-00164-HEH-1) Argued: May 7, 2021 Decided: July 26, 2021 Before AGEE, HARRIS, and RUSHING, Circuit Judges. Affirmed by unpublished opinion. Judge Harris wrote the opinion, in which Judge Agee and Judge Rushing joined. ARGUED: Caroline Swift Platt, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Daniel Taylor Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Geremy C. Kamens, Federal Public Defender, Joseph S. Camden, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, S. David Schiller, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PAMELA HARRIS, Circuit Judge: In 1997, Rodrigo Martinez-Mendoza was ordered deported in absentia, after he failed to attend his deportation hearing. Twenty years later, based on that order, he was charged with illegal entry under 8 U.S.C. § 1326. During his criminal proceedings, he sought to challenge the 1997 order collaterally, arguing that its entry in absentia violated his due process rights. The district court denied Martinez-Mendoza’s motions to dismiss the indictment against him, finding that he could not establish the factual predicates for his collateral challenge, and Martinez-Mendoza was convicted. Because the district court’s factual findings were not clearly erroneous, we uphold the court’s denial of Martinez-Mendoza’s motions to dismiss and affirm the court’s judgment. I. A. We begin with the facts surrounding the 1997 deportation order entered against Martinez-Mendoza, the subject of the collateral attack now before us. Martinez-Mendoza, a Mexican citizen who had entered the United States without inspection, was served personally with an Order to Show Cause on November 10, 1996. That Order initiated deportation proceedings against Martinez-Mendoza. It also told him that there would be a hearing before an immigration judge (“IJ”) on a date yet to be determined, and that notice of the hearing date would be mailed to his home address, which Martinez-Mendoza provided on the form. Martinez-Mendoza was warned that a deportation order would be 3 entered in his absence if he failed to attend the hearing, and informed of his right to challenge such an order. Whether the Immigration and Naturalization Service (“INS”) properly served the notice of a hearing date that was supposed to follow – officially, a “Notice of Hearing” – is one of the disputes at the heart of this case. No certified mail return receipt was recorded or placed in Martinez-Mendoza’s file. The IJ later would determine, however, that the Notice of Hearing indeed had been sent by certified mail to Martinez-Mendoza’s home address in Houston, Texas, notwithstanding the missing …
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