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United States v. Rochel-Cervantes

United States District Court, D. Kansas

May 28, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SIMON ROCHEL-CERVANTES, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendant's motion to dismiss the indictment. (Doc. 14.) The government has filed its response. (Doc. 15.) For the reasons stated herein, Defendant's motion to dismiss (Doc. 14) is DENIED.

         I. Background

         Defendant is charged with one count of being unlawfully found in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). (Doc. 11.) The indictment alleges that Defendant is a citizen of Mexico, that he was previously removed or deported, and that he was found on March 5, 2019, [1] in the District of Kansas, having voluntarily re-entered without obtaining consent to reapply for admission to the United States. (Id.)

         Defendant's 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. 14 at 20-21.) The motion alleges that Defendant's deportation occurred in 2000, and that the proceedings began with service of a notice to appear (“NTA”) that alleged Defendant was subject to removal under section 212(a)(6)(A)(i) of the Immigration and Nationality Act. The NTA directed Defendant to appear before an immigration judge to show cause why he should not be removed from the United States, but it did not provide a date, time, or location where removal proceedings were to occur. Rather, the NTA stated the date was “To Be Calendared” at a time “To Be Set.” As to the location of the proceedings, the NTA referenced “Attachment A, ” which stated in relevant part: “Your Notice to Appear is not being filed with the Office of the Immigration Judge at this time. At the time the Notice to Appear is filed, you will be notified of the street address, city, state, and zip code of the Office of the Immigration Judge having jurisdiction over your case.” (Doc. 14-2.) 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 executed a portion of the form permitting a waiver of the ten-day period and requesting an immediate hearing. (Id.) A certificate of service by the ICE agent indicates Defendant was personally served with the NTA on January 6, 2000, and was given a list of attorneys providing free legal services. (Id.)

         On February 9, 2000, an immigration judge entered a stipulated order directing that Defendant be removed to Mexico on the charges contained in the NTA.[2] (Doc. 14-1.) The order stated that it was based on Defendant's admissions and a “Stipulated Request” for a final order of removal dated January 31, 2000.[3] The immigration judge's order indicated that Defendant waived his right to appeal. (Id.)

         Defendant 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. 14 at 7) (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. 14 at 12-13.) Defendant contends the indictment must be dismissed as a result. Defendant 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 13-14.) 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.

         Defendant also argues the immigration judge who ordered his removal was not appointed to his position in a manner consistent with the Appointments Clause of the Constitution. (Doc. 14 at 21-24) (citing U.S. Const., art. II, § 2, cl. 2.) Defendant argues this failure makes the removal order invalid and prevents the government from meeting its burden of proof on the present charge. (Id. at 24.)

         II. Discussion

         A. Pereira jurisdictional challenge. Neither 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. Defendant's argument essentially asserts that the immigration court lacked jurisdiction when entering the deportation order due to the defective NTA; that the order is therefore void; and that, as a result, this matter must be dismissed because the government cannot establish Defendant's guilt beyond a reasonable doubt.

         The undersigned has ruled previously that the immigration court is not deprived of subject matter jurisdiction due to the service of an NTA that failed to meet the standards of Pereira. 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. Hernandez-Mendez, No. 18-20055-01-DDC, 2019 WL 2120882 (D. Kan. May 15, 2019); 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).

         As Defendant concedes, other 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); Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir. 2018). 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). See also Szabo v. United States Attorney General, F. App'x, 2019 WL 2191115, *1 (11th Cir. May 21, 2019) (dismissing Pereira-based challenge to Board of Immigration Appeals' ruling for failure to exhaust administrative remedies and consequent lack of appellate jurisdiction); Banegas Gomez v. Barr, 922 F.3d 101, 110 (2d Cir. 2019) (Pereira “is not properly read to void jurisdiction in cases in which an NTA omits a hearing time or place.”) (emphasis in original); Ortiz-Santiago v. Barr, __F.3d__, 2019 2171368, *1 (7th Cir. May 20, 2019) (“We thus hold, as have the Second, Sixth, and Ninth Circuits, that an Immigration Court's jurisdiction is secure despite the omission in a Notice of time-and-place information.”).

         The courts in this district have applied Pereira narrowly and denied motions to dismiss based on the arguments raised by Defendant. See Hernandez-Mendez, 2019 WL 2120882, at *3 (citing cases). The Tenth Circuit has yet to rule on this issue. After examining the relevant case law, [4] 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. Serrano-Ramirez, No. 19-10024-JWB, 2019 WL 2070309 (May 9, 2019) and Larios-Ajualat, 2018 WL 5013522.

         This case has somewhat different facts than some of the other cases decided by the undersigned, in that the record does not show that Defendant received a notice of hearing with a specific time and date after receiving the NTA. This fact, however, does not affect this court's analysis that subject matter jurisdiction is conferred under 8 U.S.C. § 1229a and is not affected ...


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