United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES, UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendant's amended motion
to dismiss the indictment. (Doc. 15.) The government has filed its
response. (Doc. 13.) For the reasons stated herein,
Defendant's amended motion to dismiss (Doc. 15) is
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. 9.) The indictment alleges that Defendant is a
citizen of Mexico, that he was previously removed or
deported, and that he was found on February 26, 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 19.) The motion
alleges that on December 26, 2007, Defendant was in prison at
FCI-Fort Dix, New Jersey, when he was personally served with
a notice to appear (“NTA”). (Id. at 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
(“INA”) and section 212(a)(2)(A)(i)(II) of the INA
for being convicted of a crime under the Controlled
Substances Act. The NTA directed Defendant to appear before
an immigration judge at a location in Newark, New Jersey,
“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. 15-1 at 1.) 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 4.) 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 December 26, 2007, and
was given a list of attorneys providing free legal services.
hearing was held on January 9, 2008. At the conclusion of the
hearing, Defendant was ordered to be removed from the United
States and returned to Mexico. Defendant waived his right to
appeal. (Doc. 13, Exh. 1.)
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. 15 at 6) (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. 15 at 11-12.) Defendant contends the
indictment must be dismissed as a result.
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 12-13.) 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.
Defendant's argument essentially asserts that the
immigration court lacked jurisdiction when entering the
deportation order due to the defective NTA, the order is
therefore void, and, as a result, this matter must be
dismissed as 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, 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);
Hernandez-Perez v. Whitaker, 911 F.3d 305 (6th Cir.
2018). Cf. United States v. Contreras-Cabrera, ____
Fed.Appx. ____, 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).
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 the other cases
decided by the undersigned. The difference in this matter is
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 ...