United States District Court, D. Arizona
Honorable Rosemary Marquez United States District Judge.
March 7, 2018, Defendant Eder Said Erazo-Diaz was indicted
for illegal reentry of a removed alien in violation of 8
U.S.C. § 1326(a). (Doc. 7.) On September 14, Defendant
filed a Motion to Dismiss Indictment Pursuant to 8 U.S.C.
§ 1326(d), arguing that the prior order of removal is
void and thus cannot serve as a predicate for the illegal
reentry charge. (Doc. 33.) On November 2, 2018, Magistrate
Judge Leslie A. Bowman issued a Report and Recommendation,
recommending that the Motion to Dismiss be granted. (Doc.
48.) The Government filed Objections, to which Defendant has
responded. (Docs. 52, 53.)
is a Honduran national who first entered the United States in
2007. On August 1, 2008, he was served with a Notice to
Appear, alleging that he was removable under the Immigration
and Nationality Act. The Notice to Appear directed Defendant
to appear before an immigration judge “on a date to be
set at a time to be set to show why [he] should not be
removed from the United States . . . .” On August 18,
2008, Defendant was served with a Notice of Hearing,
scheduling his master hearing before the immigration court on
October 20, 2008, at 1:00 p.m. Defendant was subsequently
served with ten more Notices of Hearing, each continuing the
master hearing to a later date. Finally, on December 8, 2010,
the immigration judge ordered that Defendant be deported to
Honduras. Defendant was deported on December 17, 2010.
reentered the United States. Immigration officials determined
that Defendant was removable through reinstatement of the
December 2010 order of removal. Defendant was deported on
September 13, 2017.
was apprehended on February 10, 2018, after reentering the
United States. He is now charged with illegal reentry
“after having been . . . removed . . . on or about
September 13, 2017[.]” He argues that his charge must
be dismissed because the immigration judge lacked
jurisdiction to enter the December 2010 order of removal, a
fact which would preclude the Government from relying on that
order or its reinstatement.
challenges the underlying removal order upon which the §
1326(a) charge is predicated. Defendant contends that the
order of removal that was reinstated and used to deport him
was void. Based on her interpretation of a recent United
States Supreme Court case, Pereira v. Sessions, 138
S.Ct. 2105 (2018), Judge Bowman agreed.
collateral challenge is governed by § 1326(d), which
requires him to demonstrate that (1) he exhausted the
administrative remedies available for seeking relief from the
predicate removal order; (2) the removal proceedings
improperly deprived him of the opportunity for judicial
review; and (3) the predicate removal order was fundamentally
unfair. A removal order 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.” United
States v. Guizar-Rodriguez, 900 F.3d 1044, 1047 (9th
Cir. 2018) (quoting United States v.
Ubaldo-Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004)).
Pereira v. Sessions & Notices to Appear
U.S.C. § 1229a(a)(1) authorizes immigration judges to
“conduct proceedings for deciding the inadmissibility
or deportability of an alien.” Removal proceedings are
initiated by the filing of a “notice to appear”
with the immigration court. 8 C.F.R. § 1239.1(a).
Jurisdiction does not vest in the immigration court until the
“notice to appear” is filed. Id.
§§ 1003.13, 1003.14(a); see Gonzalez-Caraveo v.
Sessions, 882 F.3d 885, 890 (9th Cir. 2018) (“Once
a notice to appear is filed with the Immigration Court,
however, jurisdiction over the individual's immigration
case vests with the [immigration judge] . . . .”).
Pursuant to 8 U.S.C. § 1229(a)(1), a “notice to
appear” must contain (among other things) “[t]he
time and place at which the [removal] proceedings will be
United States Supreme Court examined the interaction between
a “notice to appear” (defined in §
1229(a)(1)) and the “stop-time rule” (codified at
§ 1229b(d)(1)), the latter of which relates to a form of
discretionary relief available to aliens who “have
accrued 10 years of continuous physical presence in the
United States.” Pereira, 138 S.Ct. at 2109-10.
Under the stop-time rule, an alien's period of continuous
physical presence is halted once a “notice to
appear” is served. Id. at 2109. Relying on the
“plain text, the statutory context, and common sense,
” the Supreme Court concluded that a putative
“notice to appear” that omits the time and place
of the removal proceedings “is not a ‘notice to
appear under section 1229(a)' and therefore does not
trigger the stop-time rule.” Id. at 2110.
Supreme Court explained that, by expressly referencing §
1229(a), the stop-time rule
specifies where to look to find out what “notice to
appear” means. Section 1229(a), in turn, clarifies that
the type of notice “referred to as a ‘notice to
appear'” throughout the statutory section is a
“written notice . . . specifying, ” as relevant
here, “[t]he time and place at which the [removal]
proceedings will be held.” § 1229(a)(1)(G)(i).
Thus, based on the plain text of the statute, it is clear
that to trigger the stop-time rule, the Government must serve