United States v. Hernandez-Mendez

          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 ...