United States District Court, D. Kansas
MEMORANDUM AND ORDER
DANIEL
D. CRABTREE, UNITED STATES DISTRICT JUDGE
This
matter comes before the court on defendant Ignacio
Hernandez-Mendez's Motion to Dismiss his Indictment (Doc.
18). For reasons explained below, the court denies Mr.
Hernandez-Mendez's motion.
I.
Background
The
government has charged Mr. Hernandez-Mendez, a Mexican
citizen, with one count of illegal reentry under 8 U.S.C.
§ 1326. Doc. 1. He has entered the country illegally
four times, and he describes each entry in his motion.
Specifically, his arguments focus on two of those illegal
entries.
First,
Mr. Hernandez-Mendez illegally entered the country for the
second time on November 15, 2017. Law enforcement officers
arrested him in Kansas City, Kansas, and detained him. Doc.
18 at 2-3. That day, he received a Form I-862 (see
Doc. 18-1)-a Notice to Appear-that ordered him to appear
before a United States Department of Justice immigration
judge on a date and at a time “[t]o be set.” Doc.
18-1 at 1.[1] Mr. Hernandez-Mendez also received a
Spanish version of a Notice of Rights and Request for
Disposition form, on which he indicated his request for a
hearing before an immigration judge. Doc. 18 at 3. The Notice
to Appear that Mr. Hernandez-Mendez conceded he received
(see id.) also contained a Certificate of Service
noting that the law enforcement officer who had served the
Notice to Appear orally informed Mr. Hernandez-Mendez of
“the time and place of his . . . hearing and of the
consequences of failure to appear.” Doc. 18-1 at 2;
see also Doc. 18 at 3-4 n.3; Doc. 21 at 3. Mr.
Hernandez-Mendez apparently signed both the Notice to Appear
and the Certificate of Service. Doc. 18-1 at 2.
The
government asserts that Mr. Hernandez-Mendez retained
multiple attorneys to represent him and, through counsel and
while detained, asked for a continuance. He was sent a
“Notice of Hearing in Removal Proceedings” at the
Versailles, Missouri, county jail where he was detained. Doc.
21 at 3-4; Doc. 23-1. The immigration court set his new
hearing for January 9, 2018. At this hearing, Mr.
Hernandez-Mendez conceded that he had “re-entered [the
country] without permission.” Doc. 18 at 3. Because Mr.
Hernandez-Mendez already had departed the country once
voluntarily, the presiding immigration judge informed him of
his two options: (1) a removal order; or (2) additional time
to find and consult counsel. Mr. Hernandez-Mendez chose the
removal order. He was deported on January 19, 2018.
Second,
Mr. Hernandez-Mendez illegally entered the country for the
third time on February 6, 2018, when Border Patrol agents
arrested him near Santa Teresa, New Mexico. This time, the
Department of Homeland Security served him with a Notice of
Intent/Decision to Reinstate Prior Order, or a Form
I-871.[2] Essentially, this Notice asserted that the
government could reinstate the January 9, 2018, immigration
court order to remove Mr. Hernandez-Mendez again. But, this
time, the government didn't deport Mr. Hernandez-Mendez
immediately. Instead, the United States Attorney's Office
for the District of New Mexico prosecuted him. Mr.
Hernandez-Mendez pleaded guilty to illegal reentry. The court
sentenced him, and, on March 6, 2018, he was deported again.
Finally,
Mr. Hernandez-Mendez entered the country illegally for the
fourth time. On June 27, 2018, Immigration and Customs
Enforcement (“ICE”) officers arrested him in
Kansas City, Kansas. Mr. Hernandez-Mendez told officers that
he had entered the country illegally in April 2018. The
Indictment in this case arises from this June 27 arrest.
The
court held a hearing on Mr. Hernandez-Mendez's motion on
April 25, 2019. See Doc. 22. In the sections below,
the court discusses the statutory and case authorities
governing the motion and addresses Mr. Hernandez-Mendez's
arguments.
II.
Legal Standard
Several
statutes and regulations govern the issues underlying Mr.
Hernandez-Mendez's motion. First, 8 U.S.C. § 1229
controls the “[i]nitiation of removal
proceedings.” That section specifically requires that
“written notice (in this section referred to as a
‘notice to appear') shall be given in person to the
alien (or, if personal service is not practicable, through
service by mail to the alien or to the alien's counsel of
record, if any) specifying” several items. Id.
at § 1229(a)(2). One of the items the Notice must
include is “[t]he time and place at which the
proceedings will be held.” Id. at §
1229(a)(1)(G)(i). Second, 8 C.F.R. § 1003.14 explains
the immigration court's jurisdiction. “Jurisdiction
vests, and proceedings before an Immigration Judge commence,
when a charging document is filed with the Immigration court
. . . .” Id. at § 1003.14(a). And, 8
C.F.R. § 1003.18 specifies that the notice to appear
“shall provide . . . the time, place and date of the
initial removal hearing, where practicable.”
A
separate statute governs any attacks on “the validity
of [a] deportation order.” 8 U.S.C. §
1326(d)(1)-(3). This statute prohibits collateral attacks
unless the alien can satisfy three requirements:
(1) [T]he 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 ...