United States District Court, D. Arizona
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
...