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United States v. Chavez

United States District Court, D. Kansas

November 21, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JESUS T. CHAVEZ, Defendant.

          MEMORANDUM AND ORDER

          HOLLY L. TEETER UNITED STATES DISTRICT JUDGE

         The operative two-count Superseding Indictment charges Defendant Jesus T. Chavez with possession with intent to distribute a controlled substance (Count 1) and aggravated reentry of a removed alien in violation of 8 U.S.C. § 1326(a) (Count 2). Doc. 42 at 1-2. Defendant seeks dismissal of Count 2-aggravated reentry of a removed alien-arguing his prior removal from the United States was invalid because the Immigration Court lacked jurisdiction (both subject-matter and personal) to enter the underlying removal order.[1] Doc. 59; Doc. 60 at 3-13. Because the Court concludes Defendant's prior removal from the United States was valid, Defendant's motion is denied.

         I. BACKGROUND[2]

         Defendant entered the United States at Los Angeles, California, on June 10, 2004. Gov. Exh. 1 at 1. He was admitted as an IR6 Legal Permanent Resident (the spouse of a United States citizen). Id. On March 4, 2010, an Oklahoma state court convicted Defendant of trafficking in an illegal drug (methamphetamine) and sentenced Defendant to fourteen years' imprisonment. Gov. Exhs. 2 and 3. Ten days later, on July 11, 2014, while incarcerated, immigration authorities served Defendant with a Notice to Appear for removal proceedings under section 240 of the Immigration and Nationality Act. Gov. Exh. 4. The Notice to Appear stated that Defendant was “subject to removal from the United States” and ordered him to appear before an immigration judge. Id. at 1. The Notice to Appear did not specify the date and time of Defendant's removal hearing. Id. Instead, it said the date and time were “to be set.” Id. Defendant executed the Certificate of Service appearing at the bottom of the Notice to Appear. Id. at 2.

         On the same day the Notice to Appear was served, Defendant signed a written request for a hearing before the Immigration Court to determine whether he could remain in the United States. Id. at 3. On July 21, 2014, the Immigration Court ordered Defendant removed from the United States. Gov. Exh. 6. The removal order was served on Defendant the same day by personal service and shows that both Defendant and the Government waived the right to appeal the decision. Id. at 2. Pursuant to the Immigration Court's removal order, Defendant was removed from the United States on July 31, 2014. Gov. Exh. 7.

         On October 12, 2017, just over three years after his removal from the United States, law enforcement found Defendant in Kansas in possession of over 500 grams of a substance containing a detectable amount of methamphetamine. Doc. 42 at 1. The original indictment in the current proceedings charged Defendant with a single count of possession with intent to distribute a controlled substance. Doc. 1 at 1. On June 27, 2018, the Government filed the operative Superseding Indictment, charging Defendant with possession with intent to distribute a controlled substance (Count 1) and aggravated reentry of a removed alien (Count 2). Id. at 1-2.

         II. STANDARD

         Rule 12(b)(2) of the Federal Rules of Criminal Procedure “permits pretrial resolution of a motion to dismiss the indictment only when ‘trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.'” United States v. Pope, 613 F.3d 1255, 1259 (10th Cir. 2010) (quoting United States v. Covington, 395 U.S. 57, 60 (1969)). Generally, “an indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.” United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (internal quotation omitted). However, a court “may entertain motions that require it to answer only pure questions of law, ” and may also consider motions to dismiss that require consideration of facts outside the indictment “in the ‘limited circumstances' where ‘(1) the operative facts are undisputed and (2) the government fails to object to the district court's consideration of those undisputed facts,' and (3) the district court can determine from them that, ‘as a matter of law, the government is incapable of proving its case beyond a reasonable doubt.'” Pope, 613 F.3d at 1260-61 (quoting United States v. Hall, 20 F.3d 1084, 1088 (10th Cir. 1994)); see also Todd, 446 F.3d at 1068.

         III. ANALYSIS

         Count 2 charges Defendant with illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a).[3] To convict a defendant charged with illegal reentry of a removed alien the government must prove that: (1) the defendant was “removed [from] the United States while an order of . . . removal is outstanding”; and (2) the defendant later “entere[ed], attempt[ed] to enter, or is at any time found in, the United States.”[4] United States v. Adame-Orozco, 607 F.3d 647, 651 (10th Cir. 2010) (quoting 8 U.S.C. § 1326(a)). The government may satisfy the first element by producing evidence that the defendant was removed while an order of removal was outstanding against him. See Id. (discussing the government's production of evidence in support of the defendant's deportation while a deportation order was outstanding). In defense, a defendant often attacks the validity of the underlying removal order, and this defense is specifically recognized in subsection (d) of the same statutory scheme that sets forth the elements of the offense. See Id. (discussing the defense of collateral attack of an underlying removal order under § 1326(d)).

         Count 2 and Defendant's motion to dismiss raise this exact scenario. The Government alleges Defendant was removed from the United States while an order of removal was outstanding. Defendant challenges the validity of the underlying removal order. But Defendant does not rely merely on a traditional theory of collateral attack of the underlying removal order under § 1326(d). His argument is bolstered by recent Supreme Court precedent that he contends bears directly on the issue of the Immigration Court's jurisdiction to conduct the underlying immigration proceedings and, thus, the validity of the underlying removal order.

         Defendant contends that the Supreme Court's recent holding in Pereira v. Sessions, 138 S.Ct. 2105, 2113-14 (2018) establishes that the notice to appear is the document which vests the immigration court with jurisdiction. And when a notice to appear lacks the time and date of the hearing, the immigration court never obtains jurisdiction over the immigration proceedings. Any ruling or order issued by the immigration court, thus, is void. Doc. 60 at 3-7. Defendant further contends Pereira has substantially altered a defendant's burden for successfully mounting a collateral attack against an underlying removal order under 8 U.S.C. § 1326(d) and that, under the post-Pereira approach, he can satisfy § 1326(d)'s requirements. The Government rejects Defendant's interpretation of Pereira and argues for a traditional application of § 1326(d). Doc. 60 at 5-23.

         A. Pereira Opinion

         Pereira involved the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). 138 S.Ct. at 2109. Under IIRIRA, aliens subject to removal from the United States are eligible for cancellation of removal if, among other things, they have been physically present in the United States for a continuous period of ten or more years. 8 U.S.C. § 1229b(b)(1)(A) (2012). This is commonly referred to as the “stop-time rule.” But, under the stop-time rule, the period of continuous presence ends if the alien “is served a notice to appear under section 1229(a).” Id. Section 1229(a) of the IIRIRA provides that the government will serve the alien a written “notice to appear” specifying, among other things, the “time and place at which removal proceedings will be held.” Id. § 1229(a)(1)(G)(i). The government had a practice of issuing notices that state only that the removal proceeding will take place on a date and time “to be set.” Pereira, 138 S.Ct. at 2111. Such was the case with the notice to appear received by the defendant in Pereira. Id. at 2112.

         Pereira was a Brazilian citizen who overstayed his visa in the United States and was served with a notice to appear stating the time and date of his hearing was “to be set.” Id. A year later, the immigration court mailed him a more specific notice setting the date and time of the initial hearing, but it was sent to the wrong address. Id. Pereira failed to appear, and the immigration court ordered him removed “in absentia.” Id. Several years later, law enforcement arrested him, and the immigration court reopened the removal proceedings. Id. Pereira applied for cancellation of the removal, arguing he had been continuously present in the United States for over ten years. Id. But the immigration court applied the stop-time rule based on the date of service of the initial notice to appear-the one that did not contain a date or time for his hearing-and concluded Pereira was statutorily ineligible for cancelation of removal. Id. Pereira sought appellate review by the Board of Immigration Appeals and the First Circuit, but both appeals were denied. Id. at 2113-14. The Supreme Court granted certiorari to determine the “simple, but important question” of whether a notice to appear “that fails to specify ‘the items listed' in § 1229(a)(1) trigger[s] the stop-time rule[.]” Id. at 2114.

         The Supreme Court held that “[a] putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a ‘notice to appear under section 1229(a),' and so does not trigger the stop-time rule.” Id. at 2113-14. In its analysis, the Supreme Court focused on the need to provide the noncitizen a meaningful opportunity to obtain counsel (if so desired) and prepare for and participate in the hearing. Id. at 2114-15. Because Pereira never received any notice of the hearing, he had no such opportunity. Id. The Supreme ...


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