NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE.
This matter is before the Court upon Defendant Jose Orangel Saravia-Chavez's motion to dismiss the indictment. (Dkt. 22). The indictment contains one count, charging Saravia-Chavez with illegally reentering the United States in violation of 8 U.S.C. § 1326. (Dkt. 1). Saravia-Chavez argues that the indictment should be dismissed because the notice to appear initially issued to him failed to specify the time and date of the removal proceedings against him, as required by 8 U.S.C. § 1229(a)(1) and Pereira v. Sessions, ___ U.S. ___, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). Saravia-Chavez advances two specific attacks on the indictment. First, Saravia-Chavez argues that without a valid notice to appear, subject matter jurisdiction never vested in the immigration court, rendering that court's deportation order a legal nullity. Second, Saravia-Chavez launches a collateral attack against his deportation order under 8 U.S.C. § 1326(d), arguing that his initial deportation proceedings lacked fundamental fairness.
Although conceding that the notice to appear issued to Saravia-Chavez was defective under § 1229(a)(1) and Pereira, the Government argues that the indictment should be upheld for two reasons. First, the Government asserts that federal regulations, not § 1229(a)(1) or Pereira, control when and how subject matter jurisdiction vests in an immigration court, and these regulations do not require that a notice to appear list the time and place of any removal proceeding. Second, the Government contends that Saravia-Chavez's collateral attack under § 1326(d) fails because Saravia-Chavez cannot show that he exhausted administrative remedies, that he was deprived of an opportunity for judicial review, or that his deportation proceedings were fundamentally unfair.
The Government is correct that the immigration court had subject matter jurisdiction over Saravia-Chavez's deportation proceedings under the governing regulations. Moreover, Saravia-Chavez's collateral attack on the underlying deportation order fails because, although the initial notice to appear lacked the time, date, and place of the removal proceedings, Saravia-Chavez received subsequent notice of these details, attended his deportation hearing, and admitted to facts that supported the issuance of a deportation order. Saravia-Chavez therefore cannot make the necessary showing under § 1326(d) that his deportation proceedings were fundamentally unfair. Accordingly, the motion to dismiss the indictment has been denied. (Dkt. 36).
On July 25, 2018, Jose Orangel Saravia-Chavez was indicted on one count of illegal reentry into the United States in violation of 8 U.S.C. § 1326. (Dkt. 1). Saravia-Chavez, allegedly a native of El Salvador, was initially served in person with a notice to appear on April 14, 2011. (Dkt. 22-1). This notice to appear ordered Saravia-Chavez to appear 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." (Id.). The notice nowhere specified the time or date when Saravia-Chavez should appear, or the place where Saravia-Chavez should appear. The Government avers that, days after receiving the initial notice
In Pereira v. Sessions, ___ U.S. ___, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018), the Supreme Court considered whether "notices to appear" in deportation proceedings that do not specify the time and place of removal proceedings against a noncitizen 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).
Criminal defendants may allege defects in indictments in pretrial motions, including "(i) joining two or more offenses in the same count (duplicity); (ii) charging the same offense in more than one count (multiplicity); (iii) lack of specificity; (iv) improper joinder; and (v) failure to state an offense." Fed. R. Crim. P. 12(b)(3)(B). An indictment must contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). See also United States v. Daniels, 973 F.2d 272, 274 (4th Cir. 1992) ("An indictment must contain the elements of the offense charged, fairly inform a defendant of the charge, and enable the defendant to plead double jeopardy as a defense in a future prosecution for the same offense."). A reviewing court "should regard all well pleaded facts as true when considering a motion to dismiss
Collateral attacks of deportation orders are authorized where, as here, those orders are necessary to establish an element of the charged illegal reentry offense.
Saravia-Chavez advances two arguments in support of his motion to dismiss the indictment. First, he argues the indictment should be dismissed because subject matter jurisdiction never vested 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). The Court addresses each argument in turn below.
Saravia-Chavez first argues that the indictment should be dismissed because the allegedly deficient notice to appear issued to him prevented subject matter jurisdiction from vesting in the immigration court. Saravia-Chavez contends that a removal proceeding commences, and jurisdiction vests with the immigration court, only by the filing of a charging document such as a notice to appear, which Pereira and § 1229(a) establish must contain the time and place of the removal proceedings. (Dkt. 22 at 4-5). Saravia-Chavez argues that where a notice to appear "fails to include notification of the time and place of a removal hearing, the document does not qualify as a charging document so as to confer jurisdiction over an alien" to the immigration court, rendering any subsequent deportation ultra vires and void. (Id. at 7).
This argument fails. Neither Pereira nor 8 U.S.C. § 1229(a) control when and how subject matter jurisdiction over a removal proceeding vests in an immigration
Section 1003.15(b) lists seven items a notice to appear should contain, but the time and place of the removal proceedings is not among the listed criteria. Section 1003.15(c) lists five additional items that should be provided to the immigration court in a notice to appear, but, here again, the time and place of the removal proceedings is not among the listed criteria. Neither § 1003.15(b) nor § 1003.15(c) cross-reference 8 U.S.C. § 1229(a)(1).
By contrast to these regulations concerning the required content of notices to appear filed with the immigration court for jurisdictional purposes, Pereira and 8 U.S.C. § 1229(a)(1) concern the required content of notices to appear "given ... to the alien" either in person, by mail, or by delivery to the alien's counsel.
The Court finds that 8 C.F.R. § 1003.14 and § 1003.15—not 8 U.S.C. § 1229(a)(1) and Pereira's interpretation of that statutory provision—control when and how subject matter jurisdiction vests in an immigration
Saravia-Chavez also advances a collateral attack on his deportation order pursuant to 8 U.S.C. § 1326(d), which permits an alien to "challenge the validity" of the deportation order underlying an illegal reentry prosecution if the alien can demonstrate that: "(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." If an alien "satisfies all three requirements, the illegal reentry charge must be dismissed as a matter of law." United States v. El Shami, 434 F.3d 659, 663 (4th Cir. 2005).
Unlike in the subject matter jurisdiction inquiry addressed above, Pereira and the content requirements for notices to appear issued to aliens listed in 8 U.S.C. § 1229(a)(1) have bite in the § 1326(d) inquiry. The Government concedes, as it must, that the notice to appear issued to Saravia-Chavez failed to list the time, date, and place of the removal proceedings. (Dkt. 30 at 4). This defect renders this notice to appear deficient under Pereira and the plain text of § 1229(a)(1).
With respect to the first two prongs of the § 1326(d) inquiry—exhaustion of administrative remedies and deprivation of judicial review—the Government argues that Saravia-Chavez cannot demonstrate exhaustion because he "waived his right to appeal the removal decision at the time of the removal hearing." (Dkt. 30 at 5). Saravia-Chavez argues that he "was not required to exhaust his administrative remedies or seek judicial review" because the immigration court lacked jurisdiction and thus the removal proceedings were void, and because "it would have been futile" to "pursue administrative exhaustion and judicial review" under a 2011 Board of Immigration Appeals (BIA) decision holding that a putative notice to appear has legal effect "regardless of whether the date and time of the hearing have been included in the document." Matter of Camarillo, 25 I. & N. Dec. 644, 651 (BIA 2011). (Dkt. 22 at 14).
The Court rejected Saravia-Chavez's subject matter jurisdiction argument above. Furthermore, the Court finds no merit in the argument that a BIA decision issued in December 2011—months after Saravia-Chavez's deportation hearing in April 2011—rendered his ability to pursue administrative exhaustion and judicial review completely futile. Additionally, the copy of the deportation order Saravia-Chavez provided, (dkt. 22-2), indicates that Saravia-Chavez waived his right to appeal the order. Saravia-Chavez nowhere argues that this waiver was unknowing or involuntary. A knowing and voluntary waiver of the right to appeal a removal order generally constitutes a failure to exhaust administrative remedies. 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))).
Moreover, the Court notes that this is not a case where immigration officials' "failure to provide notice precluded [the defendant] from attending his deportation hearing in the first instance." El Shami, 434 F.3d at 664. In such cases, the Fourth Circuit has held that a defendant is not genuinely "apprised of his right to seek... administrative and judicial review," and thus "satisfies the first two requirements for a collateral attack under § 1326(d)." Id. Here, Saravia-Chavez received notice of the time, date, and place of his removal hearing days after receiving the defective initial notice to appear, appeared at the hearing, and admitted to
Nonetheless, the Court finds it unnecessary to affirmatively reach whether Saravia-Chavez is excused from showing exhaustion of administrative remedies and deprivation of judicial review because, even assuming that Saravia-Chavez satisfies these first two prongs, Saravia-Chavez cannot show that his deportation proceedings were fundamentally unfair. To demonstrate fundamental unfairness under § 1326(d), an alien must 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 665. An alien's "fundamental" right of due process includes "the opportunity to be heard at a meaningful time and in a meaningful manner." Id. at 664-65 (quoting United States v. Torres, 383 F.3d 92 (3d Cir. 2004)). "[D]ue process requires an alien who faces [removal] 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. To demonstrate prejudice, the alien must show that "but for the errors complained of, there was a reasonable probability that he would not have been deported." Id. See also United States v. Lopez-Collazo, 824 F.3d 453, 462 (4th Cir. 2016) (noting that "the defect in the removal proceedings" identified by the district court "must be linked" to the "resulting prejudice" for a district court to find fundamental unfairness).
The Court finds that immigration officials' failure to list the time, date, and place of Saravia-Chavez's deportation proceedings on the initial notice to appear, (dkt. 22-1), did not violate Saravia-Chavez's due process rights. This is so because the defects in the initial notice to appear Saravia-Chavez received ultimately did not deprive Saravia-Chavez of "the opportunity to be heard at a meaningful time and in a meaningful manner." El Shami, 434 F.3d at 664-65. Despite the deficiencies in the initial notice to appear, Saravia-Chavez had "notice of the charges against him," received notice days later of the date, time, and place of his removal hearing, (dkt. 30-1 at 7), and attended that hearing, where he had a "fair opportunity to be heard" by the immigration judge. El Shami, 434 F.3d at 664-65. Accordingly, the deficiencies in the notice to appear Saravia-Chavez received ultimately do not rise to the level of a due process violation.
However, even assuming that these deficiencies violated Saravia-Chavez's due process rights, Saravia-Chavez cannot show that the alleged due process violation resulted in actual prejudice. Apart from the jurisdictional arguments this Court has already rejected, Saravia-Chavez presents no substantive argument that "but for the errors complained of, there was a reasonable probability that he would not have been deported." Id. Defense counsel briefly notes that "based on his minimal criminal history, Mr. Saravia-Chavez appears to have been eligible for voluntary departure at the time of the 2011 proceedings." (Dkt. 22 at 13, n.4). But counsel has provided no further briefing on this issue and did not address this point at oral argument. Even if counsel is correct that Saravia-Chavez may have been eligible for voluntary departure at the time of his 2011 deportation proceedings, Saravia-Chavez could have sought voluntary departure prior to or at his April 26, 2011 removal hearing, which Saravia-Chavez received notice of and attended despite the deficiencies in the initial notice to appear. See § 8 C.F.R. 1240.26(b)(1)(i) (alien may seek voluntary departure prior to or at master calendar hearing); § 1240.26(b)(2) (alien may seek voluntary
In sum, the Court finds that Saravia-Chavez is precluded from collaterally attacking his deportation order under § 1326(d) because, at a minimum, he fails to show that the defects in the initial notice to appear rendered his deportation proceedings fundamentally unfair.
For the foregoing reasons, the Court denied Saravia-Chavez's motion to dismiss the indictment. (Dkt. 36).
The Clerk of the Court is hereby directed to send a certified copy of this memorandum opinion and the accompanying order, (dkt. 36), to all counsel of record.
