United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE
matter is before the court on Defendant's motion to
dismiss the indictment. (Doc. 13.) The government has filed
its response. (Doc. 16.) For the reasons stated herein,
Defendant's motion to dismiss (Doc. 13) is DENIED.
is charged with one count of being unlawfully found in the
United States in violation of 8 U.S.C. § 1326(a) and
(b)(1). (Doc. 1.) The indictment alleges that Defendant is a
citizen of Mexico, that he was previously removed or
deported, and that he was found on January 7, 2019, in the
District of Kansas, having voluntarily re-entered without
obtaining consent to reapply for admission to the United
motion argues that “no predicate removal order that
comports with due process exists” and therefore the
government “is incapable of proving its case as a
matter of law….” (Doc. 13 at 22.) The motion
alleges that on February 11, 2010, Defendant was in jail in
Battle Creek, Michigan, when he was served with a notice to
appear (“NTA”) by an agent of Immigration and
Customs Enforcement (“ICE”). (Id. at
1-2.) The NTA alleged that Defendant was subject to removal
because he was in the United States in violation of section
212(a)(6)(A)(i) of the Immigration and Nationality Act,
it directed Defendant to appear before an immigration judge
at a location in Detroit “on a date to be set”
and at “a time to be set” to show cause why he
should not be removed from the United States. (Doc. 13-1 at
2.) The form contained a notice of rights, including an
explanation of the right to be represented by an attorney and
a statement that the hearing would not be set earlier than
ten days from the date of the notice to allow Defendant
sufficient time to secure counsel. (Id. at 3.)
Defendant did not execute a portion of the form that
permitted a waiver of the ten-day period. A certificate of
service by the ICE agent indicates Defendant was personally
served with the NTA on February 11, 2010, and was given a
list of attorneys providing free legal services.
February 18, 2010, Defendant was mailed a “Notice of
Hearing in Removal Proceedings” by the immigration
court. The Notice of Hearing specified a master removal
hearing was set for February 23, 2010, at 1:00 p.m. (Doc.
13-2.) Defendant's motion asserts that because this
notice was mailed on February 18, Defendant received it no
sooner than February 20, 2010, three days before the removal
hearing. (Doc. 13 at 3.) Defendant appeared before an
immigration judge on February 23, 2010. The immigration judge
denied Defendant's application for voluntary departure
and ordered his removal to Mexico. (Doc. 13-3 at 2.) The
order (a preprinted form with hand-written markings)
indicates Defendant waived an appeal. (Id.) The form
is silent with respect to representation at the
argues the NTA was defective for failing to specify a date
and time for the hearing, as explained in Pereira v.
United States, 138 S.Ct. 2105 (2018). Because
Pereira holds that a document lacking such
information does not constitute a “notice to
appear” within the meaning of 8 U.S.C. § 1229(a),
Defendant argues the immigration court lacked subject matter
jurisdiction to order his removal. This is so because the
regulations provide that “[j]urisdiction vests, and
proceedings before an Immigration Judge commence, when a
charging document is filed with the Immigration Court by the
Service, ” and Defendant argues that an NTA under
§ 1229(a) constitutes the charging document for these
purposes. (Doc. 13 at 7-8) (citing 8 C.F.R. §
1003.14(a)). Absent an NTA satisfying § 1229(a), he
contends, his removal proceedings were “void and in
violation of due process.” (Doc. 13 at 4.) Defendant
contends the indictment must be dismissed as a result.
further argues that any reliance on the later Notice of
Hearing to cure the initial failure to specify the
hearing's date and time is unavailing, because the
regulations require DHS, not the immigration court, to issue
the NTA that vests the immigration court with jurisdiction,
and also because the Notice of Hearing only gave Defendant
two or three days to obtain representation. (Id. at
5.) Defendant argues this “fails the due process test
under the U.S. Constitution” and “poisons the
entire removal process.” (Id.) Defendant
asserts it does not matter that these issues were not raised
in administrative or judicial appeals because subject matter
jurisdiction cannot be waived. (Doc. 13 at 12.) Defendant also
argues he suffered prejudice from the deficient notice
because he was “removed when he could not have been
[lawfully removed] under the laws set forth by
Congress.” (Id. at 14.)
acknowledges there is conflicting case law on this issue
after Pereira, and that two circuit courts have
taken a position inconsistent with his argument.
(Id. at 15.) But he points out the Tenth Circuit has
not ruled on the issue, and he maintains that cases such as
United States v. Virgen-Ponce, 320 F.Supp.3d 1164
(E.D. Wa. 2018), which dismissed a § 1326 indictment
based upon Pereira, are more persuasive.
party has requested an evidentiary hearing or challenged the
facts alleged in the briefs. The court accordingly accepts as
uncontested the non-conclusory facts set forth in the briefs
and those shown in the documents attached to the briefs.
undersigned has twice ruled previously that service of an NTA
that failed to meet the standards of Pereira,
followed by service of a notice that specified the time and
date of a removal hearing, did not deprive the immigration
court of subject matter jurisdiction to order removal and did
not satisfy or excuse the limitations on collateral attack in
8 U.S.C. § 1326(d). See United States v.
Larios-Ajualat, No. 18-10076-JWB, 2018 WL 5013522 (D.
Kan. Oct. 15, 2018), United States v. Lira-Ramirez,
No. 18-10102-JWB, 2018 WL 5013523 (D. Kan. Oct. 15, 2018).
Other judges in this district have reached a similar
conclusion. See e.g., United States v.
Garcia-Valadez, No. 18-10144-EFM, 2019 WL 1058200 (D.
Kan. Mar. 6, 2019); United States v. Chavez, No.
17-40106-HLT, 2018 WL 6079513 (D. Kan. Nov. 21, 2018).
Defendant concedes, at least two circuit courts have found
the immigration court has jurisdiction to order removal
notwithstanding the use of an NTA that failed to specify the
time and date of the hearing. Karingithi v.
Whitaker, 913 F.3d 1158 (9th Cir. 2019) (the
regulations, not § 1229(a), address the immigration
court's jurisdiction, and the regulations do not mandate
that an NTA include the time and date of the hearing);
Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir.
2018) (immigration court jurisdiction vests provided notice
with the time and date of the hearing is issued after the
deficient NTA.) Cf. United States v.
Contreras-Cabrera, __ F. App'x__, 2019 WL 1422627
(10th Cir. Mar. 29, 2019) (concluding immigration court had
jurisdiction but noting removal was conducted under a 1992
statute that did not require an NTA to contain the time and
date of the hearing).
examining the relevant case law,  the court finds the
immigration court did not lack subject matter jurisdiction
despite the NTA's failure to specify the time and date of
the removal hearing. Moreover, the court finds the
prerequisites for collateral review under 8 U.S.C. §
1326(d) have not been established or excused here. Without
fully restating its prior legal analysis, the court
incorporates by reference its discussion of these issues in
United States v. Larios-Ajualat, No. 18-10076-JWB,
2018 WL 5013522 (D. Kan. Oct. 15, 2018) and United States
v. Lara-Ramirez, No. 18-10102-JWB, 2018 WL 5013523 (D.
Kan. Oct. 15, 2018). In summary, the court finds the subject
matter jurisdiction of the immigration courts was conferred
by Congress in 8 U.S.C. § 1229a and is not affected by
filing of an NTA; that 8 C.F.R. § 1003.14 refers to
acquisition of personal jurisdiction over a person for
purposes of ordering his removal; that the regulations do not
require an NTA to include the date and time of the removal
hearing to constitute a “charging document” that
vests the immigration court with jurisdiction (see 8
C.F.R. § 1003.15); and that ...