United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau, United States Magistrate
matter was referred to Magistrate Judge Rateau for pretrial
matters. On July 17, 2018, Defendant Ismael Morales-Hernandez
(“Defendant”) filed a Motion to Dismiss
Indictment Pursuant to 8 U.S.C. 1326(d). (Doc. 26). The
Government filed a Response in Opposition on July 27, 2018.
(Doc. 31). Defendant did not file a reply. The Court held a
hearing on August 7, 2018. Defendant was present and
represented by counsel. No witnesses testified at the
hearing. Having considered the matter, the
Magistrate Judge recommends that the motion be
Factual Findings 
November 18, 2003, Immigration and Naturalization Services
served the Defendant with a Notice to Appear
(“NTA”) for removal proceedings. (Doc. 31-1). The
NTA stated that the date, time and location of the hearing
would be set in the future. Id. On December 29,
2003, the Executive Office for Immigration Review
(“EOIR”) sent written notification to the
Defendant stating that the removal proceeding would occur on
January 14, 2004. (Doc. 31-3). On January 14, 2004, Defendant
appeared at his removal hearing. (Doc. 31-4). At the request
of defense counsel, the hearing was continued for two weeks.
Id. On January 28, 2004, Defendant again appeared
before the immigration judge with counsel appearing
telephonically. (Doc. 31-5). That same day, the Defendant was
ordered removed from the United States to Mexico. (Doc.
31-6). On August 11, 2004, Defendant re-entered the United
States. (Doc. 31-7). The 2004 removal order was reinstated.
Id. On February 16, 2018, Defendant was arrested in
Sierra Vista. (Doc. 1). He was indicted on March 14, 2018,
and charged with illegal reentry into the United States in
violation of 8 U.S.C. § 1326 (a) and (b)(1). (Doc. 7).
convict an alien criminal defendant of illegal reentry under
8 U.S.C. § 1326, the government must prove that the
alien left the United States under order of exclusion
deportation or removal, and then illegally reentered.”
United States v. Alvarado-Pineda, 774 F.3d 1198,
1201 (9th Cir. 2014) (quoting United States v.
Barajas-Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011)).
When facing such a charge, a non-citizen has the right under
the Fifth Amendment to “collaterally attack his removal
order because the removal order serves as a predicate element
of his conviction.” Alvarado-Pineda, 774 F.3d
at 1201 (quoting United States v. Ubaldo-Figueroa,
364 F.3d 1042, 1047 (9th Cir. 2004)). That right is codified
at 8 U.S.C. § 1326(d), which requires a defendant to
demonstrate that (1) he exhausted all administrative remedies
available to him to appeal his removal order, (2) the
underlying removal proceedings at which the order was issued
improperly deprived him of the opportunity for judicial
review, and (3) the entry of the order was fundamentally
unfair. Ubaldo-Figueroa, 364 F.3d at 1048;
see 8 U.S.C. § 1326(d).
main issue in this case is number three. An underlying order
of removal is “fundamentally unfair” if (1) a
defendant's due process rights were violated by defects
in his underlying deportation proceeding, and (2) he suffered
prejudice as a result of the defects.
Alvarado-Pineda, 774 F.3d at 1201.
Defendant contends that because his NTA failed to designate
the specific date, time and location of his removal
proceeding as required by 8 U.S.C. § 1229(a), the
Immigration Judge had no jurisdiction to issue a removal
hearing and his removal violated due process. In support,
Defendant cites the recent Supreme Court case of Pereira
v. Sessions, 138 S.Ct. 2105 (2018), where the Court held
that that “[a] putative notice to appear that fails to
designate the specific time or place of the noncitizen's
removal proceedings is not a ‘notice to appear under
section 1229(a),' and so does not trigger the stop-time
rule.” Id. at 2113-14.
Government argues that Pereira does not apply
because it presented a very narrow question involving the
“stop-time rule” of a form of relief called
cancellation of removal. Pereira was not about the
EOIR's jurisdiction over a defendant. Thus, despite the
lack of compliance with section 1229(a), the Government
contends that the Notice to Appear served upon the Defendant
still contained all the information required by 8 C.F.R.
§ 1003.15 and met the 8 C.F.R. § 1003.14 definition
of a charging document and was thus sufficient to confer
jurisdiction on the immigration court.
Court disagrees with the Government's restrictive reading
of the Pereira decision. Rather, the Court is
persuaded by the reasoning of Senior United States District
Judge Nielsen from the Eastern District of Washington, who
recently evaluated the Pereira decision in the same
context as it applies in the instant matter. As Judge Nielsen
The Court concurs from a practical standpoint Defendant
clearly became aware of the time and date set for the
immigration hearing because he was in custody at the time and
was transported to the hearing. However, the Court must rely
upon the plain language of the statute as well as the
precedent set by the Supreme Court. The statute plainly
states that the Notice of Hearing must contain the date and
time of the hearing. Lack of such information deprives the
alien of proper notice as required by § 1229(a). Since
the Notice of Appearance in this case omits information
required by the statute, the Notice is deficient.
The immigration judge lacked jurisdiction over
Defendant's case because of the deficient Notice.
“Jurisdiction vests, and proceedings before an
Immigration Judge commence, when a charging document is filed
with the Immigration Court by the Service.” 8 C.F.R.
United States v. Virgen-Ponce, No.
2:18-CR-0092-WFN-1, 2018 WL 3655166, at *2-3 (E.D.Wash. July
Judge Nielsen, the Court here finds that lack of a
statutorily compliant Notice to Appear in Defendant's
case means that the immigration court did not have
jurisdiction to issue his removal order. The Court also finds
that Defendant need not show that he exhausted ...