United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE.
District Court referred this case to the Magistrate Judge for
a hearing on the defendant's motion to dismiss indictment
pursuant to 8 U.S.C. § 1326(d). The defendant, Eder Said
Erazo-Diaz, argues that the indictment in this case must be
dismissed because the charge is based on reinstatement of an
invalid prior deportation which was ordered in violation of
his Fifth Amendment right to Due Process of the law. (Doc.
33). The government filed a response (Doc. 35) and the
defendant filed a reply (Doc. 37). The government filed a
supplemental response on 10/29/18, including exhibits 7- 22.
hearing was held on 10/18/18. No witnesses testified.
Government's Exhibits 1-6 and Defendant's Exhibits
11-13 were admitted and made part of the record, by
stipulation of the parties. A second hearing was held on
10/30/18. Government's Exhibits 7-22 were admitted for
purposes of this motion.
defendant is charged by indictment with re-entry of a removed
alien, in violation of 8 U.S.C. 1326(a), enhanced by
subsection (b)(1). (Doc. 7)
facts are not in dispute. The defendant is charged with
illegally re-entering the United States after being removed
from the country on about 9/13/17. The removal was based on
an order reinstating a prior order of removal that was
entered on 12/8/10. The 2010 removal order was initiated by a
Notice to Appear (NTA), dated 8/1/08. (Ex. 13) The NTA before
an immigration judge includes the place of the
defendant's initial removal hearing but does not provide
a date or time. Instead it states “a date to be
set” at “a time to be set”. The NTA is
signed by the defendant, indicating that he requested a
prompt hearing. Thereafter, the defendant was served with 11
Notices of Hearing (NOH), beginning on 8/18/08. After
numerous continuances, the last notice was served on
11/23/10. (Exs. 8-10, 12-18, 20) The final NOH set a master
hearing on 12/8/10. A review of Exhibit 6, an audio recording
of the 12/8/10 hearing, confirms that the defendant attended
the removal hearing and was represented by
counsel. He was ordered removed and waived his
right to appeal. (Ex. 21)
Court finds that the NTA is deficient. The immigration court
did not have subject matter jurisdiction. The removal order
was invalid and could not be reinstated and relied on to
remove the defendant from the United States.
process allows a defendant charged pursuant to 8 U.S.C.
§ 1326, re-entry of a removed alien, to challenge the
underlying removal order upon which the charge is predicated.
U.S. v. Mendoza-Lopez, 481 U.S. 828 (1987). To
prevail, Title 8 U.S.C. § 1326(d) requires a 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. A removal order is “fundamentally
unfair” if 1) a defendant's due process rights were
violated by defects in the underlying proceeding, and 2) he
suffered prejudice as a result. U.S. v.
Ubaldo-Figueroa, 364 F.3d 1042, 1048 (additional
present case, the defendant argues that the deportation order
that was reinstated and used to remove him from the United
States was unlawful and void because the NTA that initiated
the proceedings did not include the date and time he was to
appear, in violation of 8 U.S.C. § 1229(a)(1)(G)(i). The
defendant's position is that without a NTA that complies
with the statute, subject matter jurisdiction did not vest
with the immigration court and any order of removal without
jurisdiction was invalid. Eight C.F.R. § 1003.14(a)
explains that “Jurisdiction vests, and proceedings
before an Immigration Judge commence, when a charging
document is filed with the Immigration Court by the
Service.” Title 8 U.S.C. § 1229 states that
removal proceedings are initiated when a written notice to
appear is given in person to the alien. It sets forth the
information that must be provided, to include “the time
and place at which the proceedings will be held”, per
government responds that the Immigration and Nationality Act
(INA) does not address when or how jurisdiction vests with
the immigration court. It refers the Court to the
“comprehensive framework” of regulations,
including 8 C.F.R. §§ 1003.14 and 1003.15, for its
position that the NTA in this case complies with the
regulatory requirements that the agency is authorized to
promulgate. Section 1003.15(c) sets forth the required
contents for a NTA for removal proceedings. Five items are
listed, but date and time of the hearing are not included.
The government argues that the NTA was proper in conjunction
with the NOH that followed and provided the date and time of
the hearing. Its position is that the immigration court
properly exercised jurisdiction over the defendant.
defendant relies on Pereira v. Sessions, 138 S.Ct.
2105 (2018), 2018 WL 3058276, for the proposition that a NTA
that does not specify the date and time that the proceedings
will be held is not a NTA, pursuant to § 1229.
Defendant's position is that Pereira has