United States v. Morales-Hernandez

          REPORT AND RECOMMENDATION

          Honorable Jacqueline M. Rateau, United States Magistrate Judge.

         This 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.^[1] Having considered the matter, the Magistrate Judge recommends that the motion be GRANTED.^[2]

         I. Factual Findings ^[3]

         On 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).

         II. Legal Conclusions

         “To 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).

         The 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.

         Here, 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.

         The 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.

         The 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 explained:

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. § 1003.14.

United States v. Virgen-Ponce, No. 2:18-CR-0092-WFN-1, 2018 WL 3655166, at *2-3 (E.D.Wash. July 26, 2018).

         Like 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 ...