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United States v. Mendoza-Barcenas

United States District Court, D. Arizona

September 11, 2018

United States of America, Plaintiff,
v.
Miguel Angel Mendoza-Barcenas, Defendant.

          REPORT AND RECOMMENDATION

          HONORABLE D. THOMAS FERRARO UNITED STATES MAGISTRATE JUDGE

         This matter was referred to Magistrate Judge Ferraro for pretrial matters. On July 20, 2018, Defendant Miguel Angel Mendoza-Barcenas (“Defendant”) filed a Motion to Dismiss Indictment Pursuant to 8 U.S.C. 1326(d) (“Motion”). (Doc. 13.) The Government filed a Response in Opposition (“Response”) on August 3, 2018. (Doc. 17.) Defendant filed his Reply to his Motion to Dismiss the Indictment (“Reply”) on August 12, 2018. (Doc. 18.) The Court heard oral argument on August 21, 2018, and took the matter under advisement. (Doc. 22.) Both sides subsequently filed supplemental briefing in support of their respective positions. (Docs. 24, 25, 26.) Having fully considered the matter, the Magistrate Judge recommends that the Motion (Doc. 13) be DENIED.

         BACKGROUND

         On January 29, 2018, the U.S. Department of Homeland Security (“DHS”) served Defendant with a Notice to Appear (“NTA”) for removal proceedings. (Doc. 17-2 p. 1.) The NTA listed “a date to be set” for both date and time. Id. Defendant was served with a Notice of Hearing (“NOH”) on February 5, 2018, that included both the date and time the hearing was to take place. (Doc. 17-3.) On February 13, 2018, Defendant was removed from the United States through Nogales, Arizona. (Doc. 1.) On June 7, 2018, Defendant was arrested near San Simon, Arizona having been suspected of illegally reentering the United States. Id. On July 3, 2018, the grand jury returned an indictment charging Defendant with one count of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, enhanced by 8 U.S.C. § 1326(b)(1). (Doc. 8.)

         Based on the new illegal reentry offense, the United States probation department filed a petition to revoke Defendant's supervised release that was imposed for his prior 2017 illegal reentry conviction in the Phoenix Division of the United States District Court for the District of Arizona in case number 17-CR-00920-TUC-JAS-(DTF). (Doc. 27.)

         ANALYSIS

         I. Due Process

         “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)). Defendant has a due process right to challenge the removal order upon which the charge is predicated. See United States v. Mendoza-Lopez, 481 U.S. 828, 837, 838 (1987); See also 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 under 8 U.S.C. § 1326(d), requiring the defendant to demonstrate that 1) he exhausted his administrative remedies; 2) the underlying removal proceedings improperly deprived him of judicial review; and 3) the removal order was fundamentally unfair. See 8 U.S.C. 1326(d)(1)-(3). With respect to the third requirement, a removal order is “fundamentally unfair” if 1) a defendant's due process rights were violated by defects in his underlying proceeding, and 2) he suffered prejudice as a result. Ubaldo-Figueroa, 364 F.3d at 1048. (Additional citation omitted.)

         To meet his burden of proving that the removal order was fundamentally unfair, Defendant must show that the defects in the removal proceeding violated his due process rights and resulted in prejudice. For the reasons set forth below, Defendant has failed to show that his removal order was fundamentally unfair.

         Defendant argues that his due process rights were violated in his removal proceedings because the NTA he received did not include the date and time of his removal hearing. Defendant cites the recent Supreme Court decision in Pereira v. Sessions, 138 S.Ct. 2105 (2018), wherein the Court held 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. Defendant asserts that his NTA was legally defective when it failed to specify the time or date, thereby preventing jurisdiction from vesting with the immigration court.

         The Court disagrees with Defendant's broad interpretation and application of the Pereira decision. As the Supreme Court framed the issue it stated:

The narrow question in this case lies at the intersection of those statutory provisions. If the Government serves a noncitizen with a document that is labeled “notice to appear, ” but the document fails to specify either the time or the place of the removal proceedings, does it trigger the stop-time rule?

Pereira, 138 S.Ct. at 2110. (Emphasis added.) The Court placed additional emphasis on the narrow question that it answered throughout its opinion. See, e.g., Id. at 2113 (“[a]ccordingly, the dispositive question in this case is much narrower, but no less vital: Does a ‘notice to appear' that does not specify the ‘time and place at which the proceedings will be held… trigger the stop-time rule?” (emphasis added)); and Id. at 2110 (“The Court granted certiorari in this case, . . ., to resolve division among the Courts of Appeals on a simple, but important, question of statutory interpretation: Does service of a document styled as a ‘notice to appear' that fails to specify ‘the items listed' in § 1229(a)(1) trigger the stop-time rule?” (emphasis added)). The Supreme Court's repeated reference to the issue as being the triggering of the stop-time rule is a clear signal to the narrow application of its ruling, as is the Court's complete lack of discussion surrounding the issue of jurisdiction. Cf. Mathis v. United States, 136 S.Ct. 2243, 2254 (2016) (“[A] good rule of thumb for reading our decisions is that what they say and what they mean are one and the same. . . .”).

         Further, this case is distinguishable from Pereira on the facts and the remedy sought. First, appellant in Pereira did not receive the notice of hearing and never appeared for or participated in that hearing. Pereira, 138 S.Ct. at 2112. Here, Defendant received his NTA and his subsequent NOH and appeared before the immigration judge. This is crucial because the Ninth Circuit, along with the Fifth, Seventh and Eighth Circuits, has held that a defective notice to appear may be cured by serving a subsequent notice of hearing. See Popa v. Holder, 571 F.3d 890, 895-96 (9th Cir. 2009) (collecting cases) (“[A] Notice to Appear that fails to include the date and time of an alien's deportation hearing, but ...


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