United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
E. Gates United States Magistrate Judge.
case comes before the court on defendant's motion (D.E.
21) to dismiss the indictment charging him with the sole
offense of illegal reentry of an alien into the United States
after having previously been removed from the United States
subsequent to a conviction for a felony, in violation of 8
U.S.C. § 1326(a) and (b)(1). The motion is grounded on
the contention that the removal order entered against
defendant was unlawful. Defendant's supporting memorandum
was incorporated into the motion. The government filed a
response (D.E. 25) in opposition. The motion was referred to
the undersigned for a memorandum and recommendation pursuant
to 28 U.S.C. § 636(b)(1)(B). 2nd Public D.E. dated 26
Oct. 2018. For the reasons discussed below, it will be
recommended that defendant's motion be denied.
Defendant's Removal from the United States
is allegedly a citizen of Mexico. Notice to Appear
(comprising pp. 1-3 of D.E. 21-1) 3; see also
Def.'s Mot. 1 (noting that Mexico is defendant's
country of origin). On 29 July 2016, he was purportedly
convicted of felonious possession of marijuana in Wake County
(North Carolina) District Court. Indict. (D.E. 14) 2.
September 2016, defendant was served in person with a notice
to appear in removal proceedings. Notice to Appear 2. The
notice to appear ordered defendant to appear before an
immigration judge on a date "to be set" and at a
time "to be set" to "show why [he] should not
be removed from the United States." Notice to Appear 1.
The notice nowhere specified a date or time when defendant
should appear before the immigration judge. See id.
government asserts that defendant remained in custody pending
his removal hearing and was physically present at the removal
hearing on 20 October 2016. Gov.'s Resp. 2, 4; Custody
Determination (D.E. 25-2) 1 (concluding that defendant would
be detained pending a final administrative determination in
his case). Defendant does not contest these assertions.
removal hearing, the immigration judge entered an order of
removal ("removal order"). Removal Ord. (comprising
pp. 4-5 of D.E. 21-1) 4. The removal order indicates that
defendant waived his right to appeal and that it was
personally served on him. Id. at 4-5. Defendant was
removed from the United States on 5 November 2016 at Eagle
Pass, Texas pursuant to the removal order. Def's Mot. 1;
Criminal Proceedings against Defendant
government states that defendant again came to its attention
on 8 May 2018 when he was arrested by the Raleigh Police
Department for felony possession with intent to sell or
deliver marijuana in violation of state law. Gov.'s Resp.
2. On 11 July 2018, he was charged by criminal complaint in
this court with illegal reentry into the United States after
having been removed from the United States subsequent to
conviction for a felony, in violation of 8 U.S.C. §
1326(a) and (b)(1). Crim. Compl. (D.E. 1). Defendant was
indicted on 25 July 2018 on the same charge. Indict.
sole count of the indictment reads:
On or about May 8, 2018, in the Eastern District of North
Carolina, the defendant, YOSIMAR GONZALEZ-LEAL, an alien, was
found in the United States after having previously been
excluded, deported, and removed from the United States on
November 5, 2016, at Eagle Pass, Texas, and not having
obtained the express consent of the Attorney General, or his
successor, to reapply for admission thereto. All in violation
of Title 8, United States Code, Section 1326(a) and (b) (1).
"Allegation of Prior Conviction" section reads:
For purposes of Title 8, United States. Code, Section 1326(b)
(1), the defendant, YOSIMAR GONZALEZ-LEAL, was excluded,
deported, and removed from the United States on November-5,
2016, at Eagle Pass, Texas, after having been convicted of
possession of marijuana, a felony, on or about July 29, 2016,
in the General Court of Justice, District Court Division,
Wake County, North Carolina.
Defendant's Motion to Dismiss
September 2018, defendant filed the instant motion to dismiss
the indictment. He contends that dismissal is required
because the removal order was unlawful on two grounds: (1)
subject matter jurisdiction did not exist for entry of the
removal order pursuant to the Supreme Court's recent
decision in Pereira v. Sessions, __U.S.__, 138 S.Ct.
2105 (2018); and (2) the removal order violated
defendant's due process rights, pursuant to 8 U.S.C.
Dismissal of an Indictment
are several legal theories under which an indictment can be
dismissed where the removal order underlying a charge of
illegal reentry of a removed alien is found to be unlawful.
the removal order is found to have been entered without
subject matter jurisdiction, that fact alone can be a basis
for dismissal. "[T]he immigration court's lack of
this [subject matter] jurisdiction justifies dismissing the
indictment." United States v. Pedroza-Rocha,
No. EP-18-CR-1286-DB, 2018 WL 6629649, at *4 (W.D. Tex. 21
Sept. 2018) (citing, e.g., United States v.
Vir-gen-Ponce, 320 F.Supp.3d 1164, 1166 (E.D. Wash.
2018)). The courts in both Pedroza-Rocha, 2018 WL
6629649, at *2-4, and Virgen-Ponce, 320 F.Supp.3d at
1165-66, found that, as defendant argues in this case,
subject matter jurisdiction for entry of the removal orders
was lacking pursuant to Pereira.
theory is failure to establish an essential element of an
illegal reentry charge. Specifically, "[t]o win a
conviction [for illegal reentry] under [8 U.S.C.] §
1326, the government must prove, as an element of the
offense, the defendant's prior removal or
deportation." United States v. Moreno-Tapia,
848 F.3d 162, 165 (4th Cir. 2017) (citing United States
v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005)). Where
the removal order is found to be unlawful, the defendant has
not been removed as a matter of law and the government
therefore cannot obtain a conviction. See
Pedroza-Rocha, 2018 WL 6629649, at *5.
indictment charging unlawful reentry can also be dismissed
when the defendant establishes that the removal order
violated his due process rights under 8 U.S.C. § 1326(d)
("§ 1326(d)"). As discussed further below,
there are three requirements a defendant must meet to obtain
relief under § 1326(d). "[I]f the defendant
satisfies all three requirements, the ...