United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
B. JONES, UNITED STATES MAGISTRATE JUDGE.
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
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.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.
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
[DE-1] at 1-2.
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.
STANDARD OF REVIEW
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)).
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). 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.
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. §
Subject Matter Jurisdiction of the Immigration Court ...