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. 14.) The government has filed
its response. (Doc. 15.) For the reasons stated herein,
Defendant's motion to dismiss (Doc. 14) 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)(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,
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. 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.)
February 9, 2000, an immigration judge entered a stipulated
order directing that Defendant be removed to Mexico on the
charges contained in the NTA. (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. The immigration judge's order
indicated that Defendant waived his right to appeal.
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.
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.)
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.
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).
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.”).
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,
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.
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 ...