United States v. Erazo-Diaz

          REPORT AND RECOMMENDATION

          HONORABLE LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE.

         The 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. (Doc. 46)^[1]

         A 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.

         Charge

         The 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)

         Motion to Dismiss:

         Facts -

         The 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.^[2] He was ordered removed and waived his right to appeal. (Ex. 21)

         The 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.

         Discussion

         Due 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 citation omitted).

         In the 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 subsection (G)(i).

         The 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.

         The 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 ...