Opinion
5:18-CR-275-FL-1
01-03-2019
UNITED STATES OF AMERICA v. YOSIMAR GONZALEZ-LEAL, Defendant.
MEMORANDUM AND RECOMMENDATION
This 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.
I. BACKGROUND
A. Defendant's Removal from the United States
Defendant 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.
Page citations are to the numbers assigned by the court's CM/ECF electronic filing system.
On 26 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.
The 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.
At the 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; Indict. 1.
B. Criminal Proceedings against Defendant
The 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.
The 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).Indict. 1.
The "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.Indict. 2.
C. Defendant's Motion to Dismiss
On 28 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. § 1326(d).
II. APPLICABLE LAW
A. Dismissal of an Indictment
There 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.
Where 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. Virgen-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.
Another 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.
An 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 illegal reentry charge must be dismissed as a matter of law." El Shami, 434 F.3d at 663.
B. PEREIRA
In Pereira, the Supreme Court addressed the "narrow question" of "[i]f the Government serves a noncitizen with a document that is labeled 'notice to appear,' but the document fails to specify either the time or place of the removal proceedings, does it trigger the stop-time rule?" Pereira, 138 S. Ct. at 2110. The Court held that "[a] notice that does not inform a noncitizen when and where to appear for removal proceedings is not a 'notice to appear under section 1229(a)' and therefore does not trigger the stop-time rule." Id. Title 8 U.S.C. § 1229(a)(1) ("§ 1229(a)(1)") provides that "[i]n removal proceedings under section 1229a of this title, written notice (in this section referred to as a 'notice to appear') shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any) specifying," among other information, "[t]he time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1)(G)(i). The Court noted that "'[i]f the three words 'notice to appear' mean anything in this context, 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 in the first place." Pereira, 138 S. Ct. at 2115.
The Supreme Court in Pereira used the term "noncitizen." See generally Pereira, 138 S. Ct. 2105. However, the relevant statutes and regulations utilize the term "alien." See 8 U.S.C. § 1101(a)(3) (defining "alien" as "any person not a citizen or national of the United States"); 8 C.F.R. § 1003.15 (referring to information provided to the "alien"). Accordingly, the court uses the term "alien" throughout this Memorandum and Recommendation.
The stop-time rule is a statutory mechanism established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 related to the Attorney General's discretion to cancel removal and "adjust the status of certain nonpermanent residents." See Pereira, 138 S. Ct. at 2110 (citing 8 U.S.C § 1229b(b)). In order to be eligible for such relief, "a nonpermanent resident must meet certain enumerated criteria, the relevant one here being that the noncitizen must have 'been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of [an] application' for cancelation of removal." Id. (citing 8 U.S.C. § 1229b(b)(1)(A)) (alteration in original). Under the stop-time rule, "'any period of . . . continuous physical presence in the United States shall be deemed to end . . . when the alien is served a notice to appear under section 1229(a) of this title.'" Id. (quoting 8 U.S.C. § 1229b(d)(1)(A)).
C. Collateral Attack on a Removal Order under § 1326(d)
As noted, § 1326(d) establishes three requirements an alien charged with illegal reentry must satisfy to collaterally attack the underlying removal or deportation order: (1) "the alien exhausted any administrative remedies that may have been available to seek relief against the order"; (2) "the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review"; and (3) "the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d). Again, the illegal reentry charge must be dismissed if the defendant satisfies all three of these requirements. El Shami, 434 F.3d at 663.
The first requirement—that an alien exhaust his or her administrative remedies—is not met if the alien knowingly and voluntarily waived the right to appeal the immigration judge's removal order in the prior removal proceedings. United States v. Lopez, 667 F. App'x 837, 838 (4th Cir. 2016) ("If . . . an alien knowingly and voluntarily waives his right to appeal an order of deportation, then his failure to exhaust administrative remedies will bar collateral attack on the order in a subsequent illegal reentry prosecution under § 1326(d)." (quoting United States v. Cerna, 603 F.3d 32, 38 (2d Cir. 2010))); United States v. Ortiz, 488 F. App'x 717, 718 (4th Cir. 2012) (citing Cerna, 603 F.3d at 38); United States v. Chavez-Alonso, 431 F.3d 726, 728 (10th Cir. 2005).
The second requirement—that an alien be deprived of the opportunity for judicial review-may be met where a judge fails to give an adequate explanation of the alien's right to appeal the removal order and to apply for suspension of removal. See e.g., Mendoza-Lopez, 481 U.S. at 840.
The third requirement—that entry of the order was fundamentally unfair—requires an alien to show that "(1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects." El Shami, 434 F.3d at 664 (internal quotation marks omitted). Due process requires that an alien be provided "(1) notice of the charges against him, (2) a hearing before an executive or administrative tribunal, and (3) a fair opportunity to be heard." Id. at 665 (internal quotation marks omitted). To demonstrate actual prejudice, an alien must show that, "but for the errors complained of, there was a reasonable probability that he or she would not have been deported." Id.
III. ANALYSIS
A. Defendant's Contention that the Indictment Must be Dismissed for Lack of Subject Matter Jurisdiction for Entry of the Removal Order
Defendant first contends that the immigration judge lacked subject matter jurisdiction over defendant's removal proceedings. Specifically, defendant argues that the notice to appear did not confer jurisdiction because it did not specify the date and time of the removal proceedings, and thus, the notice to appear was a "putative notice," not a notice to appear as defined by § 1229(a)(1). See Pereira, 138 S. Ct. at 2113-14 ("A putative notice to appear that fails to designate the specific time or place of the noncitizen's removal proceedings is not a 'notice to appear under [§ 1229(a)(1)]' and so does not trigger the stop-time rule."). The government argues that defendant's jurisdictional argument is inconsistent with the holding in Pereira because Pereira's holding was limited to being applied only in cases regarding the stop-time rule.
Neither Pereira nor the statute at issue therein, § 1229(a)(1), addresses when and how subject matter jurisdiction in a removal proceeding vests in the immigration court. Instead, federal regulations promulgated by the Attorney General direct when and how jurisdiction vests in the immigration court. Specifically, 8 C.F.R. § 1003.14 provides that "[j]urisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service." 8 C.F.R. § 1003.14. For removal proceedings initiated after 1 April 1997, such as the removal proceedings in the instant case, the regulations list the following as charging documents: "a Notice to Appear, a Notice of Referral to Immigration Judge, and a Notice of Intention of Rescind and Request for Hearing by Alien." Id. § 1003.13.
The regulations define "Service" as follows:
The term Service means the Immigration and Naturalization Service, as it existed prior to March 1, 2003. Unless otherwise specified, references to the Service on or after that date mean the offices of the Department of Homeland Security to which the functions of the former Service were transferred pursuant to the Homeland Security Act, Public Law 107-296 (Nov. 25, 2002), as provided in 8 CFR chapter I.8 C.F.R. § 1001.1(c).
Subsequent regulations specify the required contents of a notice to appear for removal proceedings. Title 8 C.F.R. § 1003.15(b) requires that a notice to appear include the following:
(1) The nature of the proceedings against the alien;Id. § 1003.15(b).
(2) The legal authority under which the proceedings are conducted;
(3) The acts or conduct alleged to be in violation of law;
(4) The charges against the alien and the statutory provisions alleged to have been violated;
(5) Notice that the alien may be represented, at no cost to the government, by counsel or other representative authorized to appear pursuant to 8 C.F.R. 1292.1;
(6) The address of the Immigration Court where the Service will file the . . . Notice to Appear; and
(7) A statement that the alien must advise the Immigration Court having administrative control over the Record of Proceeding of his or her current address and telephone number and a statement that failure to provide such information may result in an absentia hearing in accordance with § 1003.26.
Another provision, 8 C.F.R. § 1003.15(c), requires that a notice to appear for removal proceedings provide the following information to the immigration court:
(1) The alien's names and any known aliases;Id. § 1003.15(c).
(2) The alien's address;
(3) The alien's registration number, with any lead alien registration number with which the alien is associated;
(4) The alien's alleged nationality and citizenship; and
(5) The language that the alien understands.
Lastly, 8 C.F.R. § 1003.18(b) specifies that a notice to appear must include "the time, place and date of the initial removal hearing, where practicable." Id. § 1003.18 (emphasis added).
As is apparent from the regulations, it is not essential the date and time of the removal proceedings be included in a notice to appear for jurisdictional purposes. Rather, such information is to be included only "where practicable." See id. § 1003.18(b). Furthermore, § 1229(a)(1)—and thus its requirements regarding a notice to appear—is not cross-referenced within 8 C.F.R. § 1003.15(b) and (c) or § 1003.18(b) to bring the requirements of § 1229(a)(1) into the requirements to confer jurisdiction.
Moreover, while the regulations mandate what information is required in notices to appear filed with the immigration court to confer jurisdiction, Pereira and § 1229(a)(1) address what information must be included in the notice to appear "given . . . to the alien" or his counsel. See 8 U.S.C. § 1229(a)(1); Pereira, 138 S. Ct. at 2109-10 (addressing the contents of a notice to appear served on a noncitizen and the fact that a noncitizen must be apprised of the time and date of the removal proceedings). Thus, there exists in the relevant law a distinction between the information required to confer jurisdiction and the information required to be provided to the alien or his counsel.
Accordingly, the court finds that the regulations, specifically 8 C.F.R. §§ 1003.14, 1003.15, and 1003.18, determine when subject matter jurisdiction is conferred upon the immigration court. Such a finding is supported by Fourth Circuit precedent. See Sorcia v. Holder, 643 F.3d 117, 119 n.1 (4th Cir. 2011) (noting that jurisdiction vests under 8 C.F.R. § 1003.14(a) without mention of § 1229(a)(1)); see also Shogunle v. Holder, 336 F. App'x 322, 324 (4th Cir. 2009) (concluding that while requisite notice procedures are set forth in 8 U.S.C. § 1229(a)(1), jurisdiction vests when a charging document is filed with the immigration court under 8 C.F.R. § 1003.14(a)). This court and other district courts have reached the same conclusion. See United States v. Torres-Medina, No. 5:17-CR-281-1H, 2018 WL 6345350, at *2 (E.D.N.C. 4 Dec. 2018) ("Fourth Circuit precedent supports the finding that immigration courts are vested with jurisdiction by regulation and not by statute."); United States v. Cortez, No. 6:18-cr-22, 2018 WL 6004689, at *3-4 (W.D. Va. 15 Nov. 2018) (concluding that the regulations "control when and how subject matter jurisdiction vests in an immigration court"); United States v. Romero-Colindres, No. 1:18-cr-00415, 2018 WL 5084877, at *2 (N.D. Ohio 18 Oct. 2018) (concluding 8 C.F.R. § 1003.14(a)—not § 1229(a)(1)—properly vested the immigration court with jurisdiction over defendant's removal hearing). But see United States v. Cruz-Jimenez, A-17-CR-00063-SS, 2018 WL 5779491, at *7-8 (W.D. Tex. 2 Nov. 2018) (holding that the immigration court lacked subject matter jurisdiction because the notice to appear was deficient under § 1229(a)(1)); Pedroza-Rocha, 2018 WL 6629649, at *4 (same); Virgen-Ponce, 320 F. Supp. 3d at 1166 (same).
The court disagrees with the holding in Cruz-Jimenez, Pedroza-Rocha, and Virgen-Ponce because each one applied Pereira to determine that the immigration court lacked subject matter jurisdiction. Cruz-Jimenez, 2018 WL 5779491, at *7-8; Pedroza-Rocha, 2018 WL 6629649, at *2-3; Virgen-Ponce, 320 F. Supp. 3d at 1165-66. However, Pereira does not address the conferral of jurisdiction and the Supreme Court expressly noted the narrow focus of its holding on the stop-time rule. See Pereira, 138 S. Ct. at 2110.
Not only is Pereira not applicable to the question of whether the immigration court had jurisdiction, but the facts of Pereira are distinguishable from those in the instant case as well. Here, although the notice to appear served on defendant did not state the time and place of the removal hearing, he was in custody from the time of service through the date of the removal hearing. As a result, he obtained actual notice of the time and place of the hearing and attended it in person. In contrast, Pereira was released from custody after he received the notice to appear without the time and place of the removal hearing, and the government mailed a second notice with the time and place to an outdated address for Pereira, although he had provided the government a current address. Id. at 2112. Pereira was therefore never given notice of the time and place of the removal hearing. As a result, he did not appear at the hearing and was removed in absentia. Id.
Defendant does not argue that the notice to appear filed with the immigration court failed to meet the requirements of 8 C.F.R. §§ 1003.15(b) and (c) and 1003.18(b). Accordingly, the court should deny defendant's motion to dismiss the indictment to the extent that it is based on lack of subject matter jurisdiction of the immigration court to issue the removal order.
B. Defendant's Contention that the Indictment Must Be Dismissed Pursuant to § 1326(d)
Although intertwined with his jurisdictional argument, defendant also argues that the indictment should be dismissed because the immigration judge violated his due process rights by entering the removal order when she did not have jurisdiction to do so and that he may collaterally attack the removal order pursuant to § 1326(d). There is no question that the notice to appear served on defendant failed to state the date and time of his removal proceeding and that this omission rendered the notice deficient under Pereira and § 1229(a)(1). However, that deficiency does not automatically satisfy the three requirements for relief under § 1326(d). Review shows that defendant has not satisfied all the requirements.
Defendant appears to assert that the immigration judge's alleged extra-judicial acts both allow him to collaterally attack his removal order under § 1326(d) and constitute a violation of defendant's due process rights. However, the analysis of whether a due process violation has occurred is subsumed within the analysis of whether defendant meets the requirements of § 1326(d). The court will address defendant's contentions accordingly.
Regarding the first requirement, defendant has not shown exhaustion of administrative remedies because he waived his appeal rights. See Lopez, 667 F. App'x at 838 (concluding that knowing and voluntary waiver of appeal rights bars collateral attack pursuant to § 1326(d)(1)). Defendant does not contend that his waiver was not knowing or voluntary. The first requirement of § 1326 is therefore not satisfied. Since a defendant is required to satisfy all three requirements, defendant's failure to satisfy this initial requirement defeats his contention under § 1326(d).
Nonetheless, defendant has also not shown that he satisfied the third requirement—that entry of the removal order violated his due process rights and thus was fundamentally unfair. Defendant argues that his due process rights were violated because the immigration judge lacked subject matter jurisdiction to enter the removal order. However, as discussed above, the court finds that the immigration judge did in fact have jurisdiction. Defendant has not otherwise demonstrated that he meets the third requirement under § 1326(d).
Specifically, defendant has not shown that the notice to appear he received deprived him of the "opportunity to be heard at a meaningful time and in a meaningful manner" since he was present at his removal hearing. El Shami, 434 F.3d at 664-65. Nor has he demonstrated—or even alleged—that he did not have notice of the charges against him or that he did not have a hearing. See id. at 665. Defendant also makes no argument that he was not provided a "fair opportunity to be heard." Id. at 664-65. Accordingly, the deficiencies in the notice to appear served on defendant did not constitute a due process violation.
However, even assuming the deficiencies in the notice to appear did constitute a due process violation, defendant has not shown that the violation resulted in actual prejudice. Namely, defendant has not demonstrated that but for the omission of the time and date of his removal hearing, there was a reasonable probability that he would not have been deported. See id. at 665. Therefore, defendant has also failed to satisfy the requirements for a finding of fundamental unfairness. This failure, of course, provides an independent basis for rejection of defendant's contention under § 1326(d).
Therefore, because defendant has failed to satisfy all the requirements for relief under § 1326(d) his motion to dismiss should be denied to the extent it is based on this statute., The other ground for his motion having already been found deficient, the motion should be denied in its entirety.
Although the court need not resolve whether defendant meets the second requirement under § 1326(d), it does not appear from the record, and defendant does not allege, that he was improperly deprived of the opportunity for judicial review.
While defendant did not request dismissal on the grounds that the government failed as a matter of law to satisfy the prior removal element of the illegal reentry charge, because defendant has not demonstrated that the removal was unlawful, such a contention would fail.
IV. CONCLUSION
For the foregoing reasons, it is RECOMMENDED that defendant's motion (D.E. 21) to dismiss the sole count of the indictment be DENIED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until 17 January 2019 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59(b); Local Crim. R. 1.1 (permitting modification of deadlines specified in local rules), 5.3(c) (E.D.N.C. Dec. 2017).
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Any response to objections shall be filed within 14 days after the filing of objections.
SO ORDERED, this 3rd day of January 2019.
/s/_________
James E. Gates
United States Magistrate Judge