HOLLY L. TEETER, District Judge.
The operative two-count Superseding Indictment charges Defendant Jesus T. Chavez with possession with intent to distribute a controlled substance (Count 1) and aggravated reentry of a removed alien in violation of 8 U.S.C. § 1326(a) (Count 2). Doc. 42 at 1-2. Defendant seeks dismissal of Count 2—aggravated reentry of a removed alien—arguing his prior removal from the United States was invalid because the Immigration Court lacked jurisdiction (both subject-matter and personal) to enter the underlying removal order.
Defendant entered the United States at Los Angeles, California, on June 10, 2004. Gov. Exh. 1 at 1. He was admitted as an IR6 Legal Permanent Resident (the spouse of a United States citizen). Id. On March 4, 2010, an Oklahoma state court convicted Defendant of trafficking in an illegal drug (methamphetamine) and sentenced Defendant to fourteen years' imprisonment. Gov. Exhs. 2 and 3. Ten days later, on July 11, 2014, while incarcerated, immigration authorities served Defendant with a Notice to Appear for removal proceedings under section 240 of the Immigration and Nationality Act. Gov. Exh. 4. The Notice to Appear stated that Defendant was "subject to removal from the United States" and ordered him to appear before an immigration judge. Id. at 1. The Notice to Appear did not specify the date and time of Defendant's removal hearing. Id. Instead, it said the date and time were "to be set." Id. Defendant executed the Certificate of Service appearing at the bottom of the Notice to Appear. Id. at 2.
On the same day the Notice to Appear was served, Defendant signed a written request for a hearing before the Immigration Court to determine whether he could remain in the United States. Id. at 3. On July 21, 2014, the Immigration Court ordered Defendant removed from the United States. Gov. Exh. 6. The removal order was served on Defendant the same day by personal service and shows that both Defendant and the Government waived the right to appeal the decision. Id. at 2. Pursuant to the Immigration Court's removal order, Defendant was removed from the United States on July 31, 2014. Gov. Exh. 7.
On October 12, 2017, just over three years after his removal from the United States, law enforcement found Defendant in Kansas in possession of over 500 grams of a substance containing a detectable amount of methamphetamine. Doc. 42 at 1. The original indictment in the current proceedings charged Defendant with a single count of possession with intent to distribute a controlled substance. Doc. 1 at 1. On June 27, 2018, the Government filed the operative Superseding Indictment, charging Defendant with possession with intent to distribute a controlled substance (Count 1) and aggravated reentry of a removed alien (Count 2). Id. at 1-2.
Rule 12(b)(2) of the Federal Rules of Criminal Procedure "permits pretrial resolution of a motion to dismiss the indictment only when `trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.'" United States v. Pope, 613 F.3d 1255, 1259 (10th Cir. 2010) (quoting United States v. Covington, 395 U.S. 57, 60 (1969)). Generally, "an indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true." United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (internal quotation omitted). However, a court "may entertain motions that require it to answer only pure questions of law," and may also consider motions to dismiss that require consideration of facts outside the indictment "in the `limited circumstances' where `(1) the operative facts are undisputed and (2) the government fails to object to the district court's consideration of those undisputed facts,' and (3) the district court can determine from them that, `as a matter of law, the government is incapable of proving its case beyond a reasonable doubt.'" Pope, 613 F.3d at 1260-61 (quoting United States v. Hall, 20 F.3d 1084, 1088 (10th Cir. 1994)); see also Todd, 446 F.3d at 1068.
Count 2 charges Defendant with illegal reentry of a removed alien in violation of 8 U.S.C. § 1326(a).
Count 2 and Defendant's motion to dismiss raise this exact scenario. The Government alleges Defendant was removed from the United States while an order of removal was outstanding. Defendant challenges the validity of the underlying removal order. But Defendant does not rely merely on a traditional theory of collateral attack of the underlying removal order under § 1326(d). His argument is bolstered by recent Supreme Court precedent that he contends bears directly on the issue of the Immigration Court's jurisdiction to conduct the underlying immigration proceedings and, thus, the validity of the underlying removal order.
Defendant contends that the Supreme Court's recent holding in Pereira v. Sessions, 138 S.Ct. 2105, 2113-14 (2018) establishes that the notice to appear is the document which vests the immigration court with jurisdiction. And when a notice to appear lacks the time and date of the hearing, the immigration court never obtains jurisdiction over the immigration proceedings. Any ruling or order issued by the immigration court, thus, is void. Doc. 60 at 3-7. Defendant further contends Pereira has substantially altered a defendant's burden for successfully mounting a collateral attack against an underlying removal order under 8 U.S.C. § 1326(d) and that, under the post-Pereira approach, he can satisfy § 1326(d)'s requirements. The Government rejects Defendant's interpretation of Pereira and argues for a traditional application of § 1326(d). Doc. 60 at 5-23.
Pereira involved the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). 138 S. Ct. at 2109. Under IIRIRA, aliens subject to removal from the United States are eligible for cancellation of removal if, among other things, they have been physically present in the United States for a continuous period of ten or more years. 8 U.S.C. § 1229b(b)(1)(A) (2012). This is commonly referred to as the "stop-time rule." But, under the stop-time rule, the period of continuous presence ends if the alien "is served a notice to appear under section 1229(a)." Id. Section 1229(a) of the IIRIRA provides that the government will serve the alien a written "notice to appear" specifying, among other things, the "time and place at which removal proceedings will be held." Id. § 1229(a)(1)(G)(i). The government had a practice of issuing notices that state only that the removal proceeding will take place on a date and time "to be set." Pereira, 138 S. Ct. at 2111. Such was the case with the notice to appear received by the defendant in Pereira. Id. at 2112.
Pereira was a Brazilian citizen who overstayed his visa in the United States and was served with a notice to appear stating the time and date of his hearing was "to be set." Id. A year later, the immigration court mailed him a more specific notice setting the date and time of the initial hearing, but it was sent to the wrong address. Id. Pereira failed to appear, and the immigration court ordered him removed "in absentia." Id. Several years later, law enforcement arrested him, and the immigration court reopened the removal proceedings. Id. Pereira applied for cancellation of the removal, arguing he had been continuously present in the United States for over ten years. Id. But the immigration court applied the stop-time rule based on the date of service of the initial notice to appear—the one that did not contain a date or time for his hearing—and concluded Pereira was statutorily ineligible for cancelation of removal. Id. Pereira sought appellate review by the Board of Immigration Appeals and the First Circuit, but both appeals were denied. Id. at 2113-14. The Supreme Court granted certiorari to determine the "simple, but important question" of whether a notice to appear "that fails to specify `the items listed' in § 1229(a)(1) trigger[s] the stop-time rule[.]" Id. at 2114.
The Supreme Court held that "[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 section 1229(a),' and so does not trigger the stop-time rule." Id. at 2113-14. In its analysis, the Supreme Court focused on the need to provide the noncitizen a meaningful opportunity to obtain counsel (if so desired) and prepare for and participate in the hearing. Id. at 2114-15. Because Pereira never received any notice of the hearing, he had no such opportunity. Id. The Supreme Court reversed the denial of Pereira's appeal and the case was remanded for further proceedings consistent with the Supreme Court's opinion. Id. at 2120.
Pereira involved a notice to appear in the context of the stop-time rule. It did not involve— and contained no discussion of—the crime of reentry of a removed alien in violation of 8 U.S.C. § 1326(a). In the wake of Pereira, however, numerous criminal defendants charged with illegal reentry under § 1326(a)—like Defendant—have begun to rely on Pereira to challenge the validity of the underlying removal (or deportation) order when the notice to appear they received from immigration authorities lacked the time and date of the hearing. And a split exists among federal district courts as to the scope and effect of Pereira on illegal reentry prosecutions under § 1326(a) when the defendant's notice to appear was defective as recognized in Pereira.
Defendant relies on four post-Pereira cases that have applied Pereira broadly and held that a defective notice to appear divests the immigration court of subject-matter jurisdiction, is null and void, and cannot support a § 1326(a) prosecution for illegal reentry—relieving the defendant of the burden of meeting § 1326(d)'s requirements for a collateral attack of a removal order. See United States v. Ortiz, 2018 WL 6012390, at *2-4 (D.N.D. 2018); United States v. Zapata-Cortinas, 2018 WL 4770868, at *2-5 (W.D. Tex. 2018); United States v. Pedroza-Rocha, No. 18-CR-1286 (W.D. Tex. 2018); United States v. Virgen-Ponce, 320 F.Supp.3d 1164, 1165-1166 (E.D. Wash. 2018).
Other district courts—including courts within this district—have distinguished Pereira where the defendant received notice of the hearing and/or was present at the hearing. These courts have concluded that a defective notice of hearing alone does not satisfy—or obviate the need to satisfy—§ 1326(d)'s three requirements for collateral attack of a removal order. See, e.g., United States v. Hernandez-Velasco, 2018 WL 5622285, at *2-4 (W.D. Okla. 2018); United States v. Briones-Herrera, 2018 WL 5315211, at *1 (W.D. Okla. 2018); United States v. Lira-Ramirez, 2018 WL 5013523, at *4-7 (D. Kan. 2018); United States v. Larios-Ajualat, 2018 WL 5013522, at *4-7 (D. Kan. 2018); United States v. Munoz-Alvarado, 2018 WL 4762134, at *1 (W.D. Okla. 2018); United States v. Ibarra-Rodriguez, 2018 WL 4608503, at *2-3 (W.D. Okla. 2018); United States v. Morales-Hernandez, 2018 WL 4492377, at *1 (D. Az. 2018).
The Tenth Circuit has not addressed Pereira's effect on illegal reentry cases or, specifically, its effect on § 1326(d)'s requirements for a defendant to collaterally attack an underlying removal order. But, historically, the Tenth Circuit has recognized the narrow circumstances under which a defendant can attack the validity of an underlying removal order, stating that:
Adame-Orozco, 607 F.3d at 651 (quoting § 1326(d) (internal quotations omitted)). Because the removal order is presumed valid, the defendant bears the burden of establishing all three elements to overcome the presumed legality and mount a successful collateral attack. Id. (citing United States v. Arevalo-Tavares, 210 F.3d 1198, 1200 (10th Cir. 2000)). In light of this clear Tenth Circuit precedent, Defendant, the Government, and the Court agree that the starting point for analyzing Defendant's challenge to Count 2 must be § 1326(d)'s three requirements for a collateral attack.
As noted above, § 1326(d) includes three specific requirements for a defendant to collaterally attack an underlying removal order: (1) exhaustion of administrative remedies;
(2) deprivation of the opportunity for judicial review; and (3) fundamental unfairness in entry of the removal order. Defendant contends, however, that Pereira (and subsequent district court opinions cited supra at pages 6-7), has drastically altered the required depth of this analysis and that, under this altered analysis, he satisfies § 1326(d)'s requirements. The Government contends Pereira has no effect on § 1326(d)'s strict requirements and that—absent an unjustifiably broad interpretation of Pereira—Defendant cannot mount a successful collateral attack against the underlying removal order. The Court agrees with the Government.
Element one of § 1326(d) requires that Defendant exhaust any administrative remedies that may have been available to seek relief against the underlying removal order. Like the notice to appear in Pereira, Defendant's Notice to Appear did not include a date and time for the hearing before the Immigration Court. Defendant argues that, under Pereira, the defect in the Notice to Appear—i.e., the lack of a time and date for the hearing—divested the Immigration Court of subject-matter and personal jurisdiction. Because the Immigration Court lacked jurisdiction, Defendant contends the removal order is invalid (or void) and Defendant was not required to exhaust all available administrative remedies.
To the extent Defendant contends an immigration court can be divested of subject-matter jurisdiction because of a defective notice to appear, the Court disagrees. He relies primarily on a federal regulation that states that "jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document
Defendant's argument fails for two reasons. First, the requirements within 8 C.F.R. § 1003.14 are analogous to service of process in federal court and are an indication that the regulation addresses the immigration court's acquisition of personal jurisdiction, not subject-matter jurisdiction. In addition to the language quoted above, § 1003.14(a) goes on to state that the charging document must include a certificate of service on the opposing party. The Tenth Circuit has recognized that "service of process provides the mechanism by which a court having venue and jurisdiction over the subject-matter of an action asserts jurisdiction over the person of the party served." Okla. Radio Assocs. v. F.D.I.C., 969 F.2d 940, 943 (10th Cir. 1992); see also Larios-Ajualat, 2018 WL 5013522, at *6 n.4 (discussing § 1003.14(a) in the context of subject-matter and personal jurisdiction); Lira-Ramirez, 2018 WL 5013523, at *6 n.4 (same).
Second, like the subject-matter jurisdiction of federal courts, an immigration court's subject-matter jurisdiction is determined by statute, not by acts taken by immigration authorities. Congress has specifically authorized immigration judges to conduct removal proceedings and to decide whether an alien is removable under immigration laws. 8 U.S.C. § 1229a(a) and (c); see also Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxitess de Guinee, 456 U.S. 694, 702 (1982) (recognizing that subject-matter jurisdiction is a constitutional and statutory requirement and no action of the parties can confer subject-matter jurisdiction); see also Larios-Ajualat, 2018 WL 5013522, at *6 n.4 (discussing § 1003.14(a) in the context of subject-matter and personal jurisdiction); Lira-Ramirez, 2018 WL 5013523, at *6 n.4 (same).
The Immigration Court had subject-matter jurisdiction over Defendant's removal proceedings by virtue of 8 U.S.C. § 1229a(a) and (c). And 8 C.F.R. § 1003.14(a) addresses the manner in which the Immigration Court would necessarily have obtained personal jurisdiction over Defendant for those proceedings—i.e., proof of service of the Notice to Appear—but 8 C.F.R. § 1003.14(a) does not speak to the Immigration Court's subject-matter jurisdiction.
To the extent Defendant contends the defective Notice to Appear divested the Immigration Court of personal jurisdiction, this argument is also unavailing. As noted, 8 C.F.R. § 1003.14(a) states that the notice to appear must include a certificate showing service on the opposing party and it is this requirement that is analogous to service of process in federal court. Here, Defendant signed the Certificate of Service indicating receipt of the Notice to Appear. Gov. Exh. 4 at 2. Receipt is sufficient for purposes of service of process regardless of the absence of the date and time of the hearing on the Notice to Appear. See Okla. Radio Assocs., 969 F.2d at 943.
Additionally, Defendant voluntarily submitted to the jurisdiction of the Immigration Court by participating in the removal proceedings subsequent to his receipt of the defective Notice to Appear. See Hopper v. Wyant, 502 F. App'x 790, 792 (10th Cir. 2012) (quoting Compagnie des Bauxites de Guinee, 456 U.S. at 703-04 ("`[A]n individual may submit to the jurisdiction of the court by appearance,' and voluntary use of certain court procedures may constitute constructive consent to the personal jurisdiction of the court.")). On the same day the Notice to Appear was served, Defendant signed a written request for a hearing to determine whether he could remain in the United States. Gov. Exh. 4 at 3. And, when the removal order was issued, Defendant waived his right to appeal the decision. Gov. Exh. 6 at 2. Defendant does not contend any of these acts were involuntary or unknowing and, thus, cannot argue the Immigration Court lacked personal jurisdiction.
In addition to its specific analysis of the subject-matter and personal jurisdiction issues, the Court also notes that, while the Notice to Appear issued to Defendant was defective under Pereira, the Court cannot expand Pereira's holding beyond its clear limitations as Defendant requests. In Pereira, the question before the Supreme Court on certiorari was limited to the context of § 1299(a)(1) and the stop-time rule. 138 S. Ct. at 2113. And the language of the opinion is also very carefully crafted. Each time the errors in the notice to appear are discussed, application of the issue is specifically limited to the stop-time rule. See, e.g., id. at 2112, 2114, 2117. The Supreme Court did not find that the immigration court lacked jurisdiction, or discuss the issue of jurisdiction at all.
The Court cannot extend Pereira beyond its application to the stop-time rule. Defendant's Notice to Appear, although defective, had no effect on the Immigration Court's jurisdiction (either subject-matter or personal) and the underlying removal order is valid. Pereira does not relieve Defendant of his burden under § 1326(d) to show he exhausted all administrative remedies that may have been available to seek relief against the underlying removal order. He failed to do so and, thus, cannot satisfy even the first of § 1326(d)'s three elements for a collateral attack to invalidate the removal order. Because defendant cannot satisfy the first element, his ability (or inability) to satisfy the second and third elements is irrelevant.
For the above reasons, the Court concludes that the Immigration Court properly exercised subject-matter and personal jurisdiction in the underlying removal proceedings, that the underlying removal order is valid, and that Defendant's removal from the United States was valid.
THE COURT THEREFORE ORDERS that Defendant's Motion to Dismiss Count 2 (Doc. 59) is DENIED.
IT IS SO ORDERED.
