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United States v. Hernandez-Aguilar

United States District Court, E.D. North Carolina, Western Division

January 9, 2019

UNITED STATES OF AMERICA,
v.
JOSE DOLORES HERNANDEZ-AGUILAR, Defendant.

          MEMORANDUM AND RECOMMENDATION

          ROBERT B. JONES, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court on the motion by Defendant Jose Dolores Hernandez-Aguilar ("Defendant") to dismiss the indictment against him. [DE-20]. The Government responded in opposition to Defendant's motion. [DE-24]. Accordingly, the matter is ripe for review. For the reasons stated below, it is recommended that Defendant's motion be denied.

         I. BACKGROUND

         According to the government, Defendant initially entered the United States in 1989 and became a lawful permanent resident in 2000. Gov't's Resp. [DE-24] at 1. On September 19, 2002, Defendant was convicted in the United States District Court for the Southern District of Texas of transporting undocumented aliens by use of a vehicle for financial gain in violation of 8 U.S.C. § 1324. Id. Defendant's conviction violated the terms of his permanent residency status subjecting him to removal proceedings. Id; Ex. [DE-24-1] at 3. As part of Defendant's immigration proceedings pursuant to the Immigration and Nationality Act following his conviction, on July 22, 2003, Defendant was served a notice to appear ("NTA") at a removal hearing. Ex. 1 [DE-24-1] at 1. According to the NT A, Defendant was a citizen of Mexico, his immigration status had been adjusted to a lawful permanent resident after entering the United States and he had been convicted in the United States District Court for transporting undocumented aliens within the United States. [DE-20-1] at 4. The NTA provided further that Defendant was to appear before an immigration judge in San Antonio, Texas "on a date to be set" and "at a time to be set." Ex. 1 [DE-24-1] at 1. The NTA did not indicate the date or time of the removal hearing. Defendant signed the NTA and requested an immediate removal hearing and waived his right to have a ten-day period in which to secure counsel. Id. at 2. Defendant remained in custody until the hearing pursuant to a July 3, 2003 custody determination. Ex. 2 [DE-24-2]. Defendant appeared at the removal hearing on August 14, 2003 before an immigration judge in Laredo, Texas. Id; Ex. 1 [DE-20-1] at 5. It appears from the order entered by the presiding immigration judge that during the hearing Defendant admitted the allegations contained in the NTA subjecting him to removal. Id. at 4-5.[1]On August 14, 2003, an immigration judge ordered Defendant removed from the United States. [DE-20-1] at 5. A warrant for removal was issued on August 19, 2003 and Defendant was thereafter removed from the United States. Id. at 6-7.

         On April 19, 2018, a Grand Jury sitting in the Eastern District of North Carolina returned a true bill of indictment against Defendant alleging as follows:

On or about April 1, 2018, in the Eastern District of North Carolina, the defendant, JOSE DOLORES HERNANDEZ-AGUILAR, also known as "JOSE FIGUEROA-MENDEZ," an alien, was found in the United States after having previously been excluded, deported, and removed from the United States on August 19, 2003, at Laredo, 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, Sections 1326(a) and (b)(2).
The indictment alleges further that
For purposes of Title 8, United States Code, Section 1326(b)(2), the defendant, JOSE DOLORES HERNANDEZ-AGUILAR, also known as "JOSE FIGUEROA-MENDEZ" was excluded, deported, and removed from the United States on August 19, 2003, at Laredo, Texas, after having been convicted of transporting undocumented aliens within the United States by means of a motor vehicle for private financial gain, an aggravated felony, on or about September 19, 2002, in the United States District Court for the Southern District of Texas.

[DE-1] at 1-2.

         On September 27, 2018, Defendant filed the instant motion to dismiss the indictment [DE-20]. In support of his motion Defendant argues that the immigration court lacked subject matter jurisdiction to issue the 2003 deportation order and the government cannot now rely on Defendant's deportation to pursue the instant charge against him. Id. at 2-4. Defendant cites to Pereira v. Sessions, 138 S.Ct. 2105 (2018) for the proposition that because Defendant's 2003 NTA failed to include the date and time of Defendant's removal hearing as required by 8 U.S.C. § 1229(a), the immigration court lacked jurisdiction. Id. at 2-3. According to Defendant, dismissal of the indictment is warranted pursuant to both 8 U.S.C. § 1326(d) (limitation on collateral attack on underlying deportation order) and due process. Id. at 4.

         II. STANDARD OF REVIEW

         Defendant requests that the court dismiss his indictment under 8 U.S.C. §§ 1326(a) and (b). In order to collaterally attack a deportation order in that context, a defendant must first meet the requirements of § 1326(d). The defendant must show that he exhausted any administrative remedies, he was deprived of the opportunity for judicial review, and the entry of the deportation order was fundamentally unfair. 8 U.S.C. § 1326(d); United States v. Chavez, No. 2:17-CR-40106-01-HLT, 2018 WL 6079513, at *4 (D. Kan. Nov. 21, 2018) ("the starting point for analyzing Defendant's challenge to [his §§ 1326(a) and (b) indictment] must be § 1326(d)'s three requirements for a collateral attack"). If the defendant is able to meet those requirements, he may contend that the deportation order was entered by a court lacking subject matter jurisdiction. See United States v. Zapata-Cortinas, No. SA-18-CR-343-OLG, 2018 WL 6061076, at *8 (W.D. Tex. Nov. 20, 2018) (holding that jurisdictional challenges are no different from other collateral attacks to a deportation order, and a defendant wishing to challenge subject matter jurisdiction must meet the requirements of § 1326(d)). If jurisdiction did not vest in the immigration court that issued the deportation order, a subsequent indictment charge of illegally re-entering the United States relying on the removal order may be subject to dismissal. See United States v. Virgen-Ponce, 320 F.Supp.3d 1164, 1166 (E. D. Wash. 2018) (relying on Pereira, 128 S.Ct. 2105 (2018)); Wilson v. Carr, 41 F.2d 704, 706 (9th Cir. 1930) ("[I]f the [deportation] order is void on its face for want of jurisdiction, it is the duty of this and every other court to disregard it."); United States v. Pedroza-Rocha, No. EP-18-CR4286-DB, 2018 WL 6629649, at *4 (W.D. Tex. Sept. 21, 2018) (holding that when an undocumented immigrant's case rests on an invalid deportation, it must be dismissed). A motion to dismiss may also challenge the failure to allege a necessary element of the offense. See Fed. R. Crim. P. 12(b)(3)(B)(v) (failure to state an offense). A defendant's prior removal or deportation from the United States is an essential element of the offense of illegal reentry in violation of 8 U.S.C. § 1326. United States v. Moreno-Tapia, 848 F.3d 162, 165 (4th Cir. 2017) (citing United States v. ElShami, 434 F.3d 659, 663 (4th Cir. 2005)).

         In Pereira, the Supreme Court considered whether "notices to appear" in deportation proceedings that do not specify the time and place of removal proceedings against an alien qualify as "notices to appear" under 8 U.S.C. § 1229(a)(1) for purposes of the "stop-time rule" under 8 U.S.C. § 1229b(d).[2] 138 S.Ct. at 2114. The Court held that such notices to appear are not true "notices to appear" as defined by § 1229(a)(1). Pereira, 138 S.Ct. at 2113-14. The Court's holding rested primarily on the plain text of § 1229(a)(1), which requires that a "notice to appear" be given to noncitizens facing removal proceedings, and defines a "notice to appear" as "written notice" specifying certain information, including the "time and place at which the proceedings will be held." Id. The Court noted that "common sense compels the conclusion" that if the "three words 'notice to appear' mean anything ... they must mean that, at a minimum, the Government has to provide noncitizens 'notice' of the information, i.e., the 'time' and 'place,' that would enable them 'to appear' at the removal hearing." Id. at 2115. In the present case, the parties dispute how Pereira applies in contexts beyond application of the stop-time rule, namely in illegal reentry prosecutions where the underlying notice to appear provided to the alien and filed with the immigration court fails to specify the time and date of the removal proceedings.

         III. DISCUSSION

         Defendant advances two arguments in support of his motion to dismiss the indictment. First, he argues the indictment should be dismissed because subject matter jurisdiction did not vest in the immigration court. Second, he contends the indictment should be dismissed under the factors set forth for a collateral attack on a deportation order in 8 U.S.C. § 1326(d).

         A. Subject Matter Jurisdiction of the Immigration Court ...


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