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United States v. Erazo-Diaz

United States District Court, D. Arizona

December 4, 2018

United States of America, Plaintiff,
v.
Eder Said Erazo-Diaz, Defendant.

          ORDER

          Honorable Rosemary Marquez United States District Judge.

         On 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.)

         I. Background

         Defendant 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.

         Defendant 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.

         Defendant 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.

         II. Discussion[1]

         Defendant 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.

         Defendant's 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)).

         A. Pereira v. Sessions & Notices to Appear

         Title 8 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 held.”

         The 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.

         The 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 ...

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