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United States v. Diaz-Lastra

United States District Court, D. Arizona

September 13, 2019

United States of America, Plaintiff,
v.
Hermilo Diaz-Lastra, Defendant.

          ORDER

          Dominic W. Lanza United States District Judge.

         INTRODUCTION

         Pending before the Court is Defendant Hermilo Diaz-Lastra's motion to dismiss his indictment for illegal reentry. (Doc. 17.) He argues the Court should dismiss the indictment because the Government cannot prove an essential element-a valid order of removal. Specifically, he contends that the Notice to Appear (“NTA”) that was issued at the start of his removal proceeding in 2004 was defective, because it didn't specify the address of the Immigration Court where it would be filed, and jurisdiction therefore never vested in the Immigration Court that later issued his removal order. For the following reasons, the Court denies the motion.

         BACKGROUND

         Diaz-Lastra is a citizen of Mexico who illegally entered the United States near Naco, Arizona in 1999. (Doc. 17-1 at 3-4.)

         On March 11, 2004, Diaz-Lastra was arrested on an immigration warrant. (Doc. 19-1 at 3.) That same day, he was served with a document entitled “Notice to Appear.” (Doc. 17-1 at 3-5.) That document indicated he was “an alien present in the United States who ha[d] not been admitted or paroled” and had been convicted in Arizona state court for aggravated driving under the influence, “a crime involving moral turpitude.” (Id.) The NTA did not indicate the date, time, or location of Diaz-Lastra's removal hearing or the address of the Immigration Court where the NTA would be filed. However, the “Certificate of Service” appearing at the end of the document, which was signed by an immigration officer, stated that Diaz-Lastra had been “provided oral notice in the Spanish language of the time and place of his or her hearing and of the consequences for failure to appear.” (Id. at 5.)

         On March 15, 2004, Diaz-Lastra was personally served with a document entitled “Notice of Filing, ” which indicated that the “Notice to Appear issued in [his] case” would be filed at the Eloy Detention Facility at 1705 E. Hanna Road, Suite 366 in Eloy, Arizona. (Doc. 19-1 at 7.)

         On March 17, 2004, Diaz-Lastra was served, through a custodial officer, with a “NOTICE OF HEARING IN REMOVAL PROCEEDINGS, ” which indicated the date, time, and location of his removal hearing. (Doc. 17-1 at 12.) The location listed in that document was the same Eloy Detention Facility listed in the “Notice of Filing.” (Id.)

         On March 23, 2004, Diaz-Lastra appeared before Immigration Judge Thomas Michael O'Leary, who ordered that Diaz-Lastra be removed from the United States to Mexico. (Id. at 14.) The removal hearing took place in Eloy, Arizona. (Id. at 17.) The removal order indicates Diaz-Lastra waived his right to appeal the order. (Id. at 14.)

         Diaz-Lastra was deported to Mexico that same day. (Id. at 22-23.) Before removal, he affirmed he did “not currently have any appeal of [his] immigration case with the Board of Immigration Appeals (BIA), the U.S. District Court, or the 9th Circuit U.S. Court of Appeals.” (Doc. 19-1 at 9.)

         On April 4, 2019, immigration officers arrested Diaz-Lastra in Chandler, Arizona. (Doc. 1 at 2.) On April 10, 2019, a federal grand jury returned an indictment charging Diaz-Lastra with illegal reentry under 8 U.S.C. § 1326(a) and (b)(1). (Doc. 7.)

         ANALYSIS

         I. Legal Standard

         The Federal Rules of Criminal Procedure permit a defendant to “raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b)(1). A defendant may move to dismiss for “a defect in the indictment or ...


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