United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER UNITED STATES DISTRICT JUDGE
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. 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.
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.
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.
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.
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.
charges Defendant with illegal reentry of a removed alien in
violation of 8 U.S.C. § 1326(a). 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.” 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)).
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.
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.
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.
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.
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 ...