DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE.
Before the Court is Defendant Luis Roberto Arroyo's ("Defendant") "Motion to Dismiss" (ECF No. 26). Defendant, a citizen of Mexico, was indicated on one count of illegal reentry after removal in violation of 8 U.S.C. § 1326. Defendant moves to dismiss the Indictment on the ground that the prior removal order was invalid and void ab initio because the immigration judge that issued the order lacked "jurisdiction" to do so. That is, in turn, because, he says, the charging document in the removal proceeding was deficient as it omitted the date and time of removal hearing. For support, he relies on the Supreme Court's recent opinion in Pereira v. Sessions, ___ U.S. ___, 138 S.Ct. 2105, 201 L.Ed.2d 433 (2018). For the reasons that follow, the Court DENIES the motion.
In 1991, Defendant became a lawful permanent resident of the United States.
On June 17, 2002, the Department of Homeland Security ("DHS") served a "Notice to Appear" ("NTA") on Defendant. Pursuant to Section 237(a)(2) of the Immigration and Nationality Act ("INA" or "Act"), as amended, the NTA charged him as removable for having committed an aggravated felony as defined in Section 101(a)(4)(B) of the Act.
At the hearing, Defendant and his counsel were present.
More recently, on July 11, 2018, a grand jury sitting in El Paso, Texas, returned a single-count Indictment (ECF No. 10) charging Defendant with illegal reentry in violation of 8 U.S.C. § 1326. The Government alleges that Defendant was found in this country without permission on June 13, 2018, and that he had previously been removed from the United States on October 15, 2002.
Section 1326 is designed to punish an alien who was previously "deported[] or removed" and thereafter was found in the United States without the permission of the Attorney General or the Secretary of the DHS. 8 U.S.C. § 1326; United States v. Garcia-Ruiz, 546 F.3d 716, 718 (5th Cir. 2008). Under certain circumstances, an alien who is being prosecuted under § 1326 can assert a challenge to the underlying removal order—provided that he satisfies the three-prong test in § 1326(d). United States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999); see also United States v. Cordova-Soto, 804 F.3d 714, 719 (5th Cir. 2015) (The defendant "must satisfy all three prongs.").
Defendant argues that the Government cannot prove that he was previously "removed" as a matter of law. Mot. to Dismiss
For support, Defendant leans on 8 C.F.R. § 1003.14 ("Regulation 1003.14"), 8 U.S.C. § 1229(a)(1), and Pereira. Regulation 1003.14(a) provides in relevant part: "Jurisdiction 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(a). "Charging document" means "the written instrument which initiates a proceeding before an Immigration Judge," including an "Order to Show Cause" ("OSC") and an NTA, respectively for proceedings initiated prior to April 1, 1997 and for those initiated thereafter. 8 C.F.R. 1003.13. As we will see, Defendant treats "jurisdiction" as used Regulation 1003.14(a) as "subject matter jurisdiction."
In Pereira, the Supreme 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 [Title 8,] section 1229(a)' and therefore does not trigger the stop-time rule" set forth in § 1229b(d)(1)(A). Pereira, 138 at 2110-11. Section 1229(a)(1) provides, in pertinent part, "[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" to the alien specifying 10 listed categories of information, including "[t]he time and place at which the proceedings will be held." 8 U.S.C. § 1229(a)(1); but see 8 C.F.R. § 1003.15 (requiring a "notice to appear" to include all of the statutory categories of information, except the time of hearing). Defendant insists that the statutory definition of the NTA, not the regulatory definition applies to the "charging document" in Regulation 1003.14(a).
Although Defendant's specific arguments overlap, they raise the following issues: (A) whether Regulation 1003.14(a) implicates immigration judges' "subject matter jurisdiction" and if so, whether the 2002 removal order was "void" for want of that jurisdiction; (B) whether the 2002 removal proceeding complied with Regulation 1003.14(a) and § 1229(a)(1), even though the NTA omitted the hearing time, and if not, whether the 2002 removal order was invalid; and (C) whether, on the basis of alleged defect as to the prior removal order, the Indictment should be dismissed under § 1326(a) or (d). In the following, the Court addresses each issue in turn.
Defendant claims that because the NTA failed to state the hearing date and time, "jurisdiction" did not vest under Regulation 1003.14(a). Mot. to Dismiss at 3-4. He concludes that "the IJ lacked authority to issue a removal order," id. at 4, and consequently, the 2002 removal order was "invalid" and "illegal," id. at 2-3. The Government responds that Defendant forfeited this claim because he personally appeared at the hearing, but failed to assert this claim before the IJ and further affirmatively waived appeal of the IJ's order to the BIA. Gov't's Resp. at 10, 17, 19.
Pressed by this response, Defendant equates "jurisdiction," as the term is used in Regulation 1003.14(a), with "subject
With regard to federal courts, "subject-matter jurisdiction" refers to "the courts' statutory or constitutional power to adjudicate" a given type of case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); United States v. Morton, 467 U.S. 822, 828, 104 S.Ct. 2769, 81 L.Ed.2d 680 (1984).
"[W]hether or not it is analytically required," the "nonwaiver rule—a traditional rule in its application to Article III courts," may be extended to a "non-Article III tribunal[]," such as the immigration court, only if the tribunal's subject matter
Like the federal courts' subject matter jurisdiction, see Arbaugh v. Y&H Corp., 546 U.S. 500, 513, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) ("The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332."), the immigration judges' authority to adjudicate deportation/removal proceedings springs from the statutes. The Immigration and Nationality Act of 1952 ("INA" or "Act"), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), explicitly and directly grants that authority: "An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien." 8 U.S.C. § 1229a(a)(1) (codifying INA § 240(a)(1), as amended by IIRIRA).
So, then, what do we make of the phrase "jurisdiction vests ..." as used in Regulation 1003.14(a)?
To be sure, "the legal lexicon knows no word more chameleon-like than `jurisdiction.'" United States v. Yousef, 750 F.3d 254, 259 (2d Cir. 2014); see also Prou v. United States, 199 F.3d 37, 45 (1st Cir. 1999) ("Judge Learned Hand once wrote that words can be chameleons, which reflect the color of their environment.") (internal quotation marks omitted)). "Jurisdiction"
To appreciate the term's chameleon-like attributes, we need venture no further than to give a cursory look at the neighboring regulations located within the same subpart where Regulation 1003.14 resides. See 8 C.F.R. § 1003.19(c)(1) ("... the Immigration Court having jurisdiction over the place of detention ...."); 8 C.F.R. § 1003.14(b) ("When an Immigration Judge has jurisdiction over an underlying proceeding, ...."); 8 C.F.R. § 1003.43(h)(1) ("The Immigration Court that last had jurisdiction over the proceedings...."); 8 C.F.R. § 1003.44(f) ("An eligible alien shall file ... with the immigration judge or the Board, whichever last held jurisdiction over the case."); 8 C.F.R. § 1003.14(c) ("Immigration Judges have jurisdiction to administer the oath of allegiance...."); 8 C.F.R. § 1003.35(b)(1)("... the Immigration Judge shall have exclusive jurisdiction to issue subpoenas ...."); 8 C.F.R. § 1003.42(a) ("Jurisdiction for an Immigration Judge to review an adverse credible fear finding by an asylum officer ....").
Further, as the Government points out, the relevant statutes do not use the term "jurisdiction," speak to when or how a removal proceeding before an immigration judge "commences," or recite any "filing" requirement; they are purely the creatures of the regulations. Section 1229a of Title 8, entitled "Removal proceedings," provides that "[a]n alien placed in proceedings under this section may be charged with any applicable ground of inadmissibility ... or any applicable ground of deportability," § 1229(a)(2) (emphasis added). Section 1229, entitled "Initiation of removal proceedings," provides: "In removal proceedings under section 1229a of this title, written notice (in this section referred to as a "notice to appear") shall be given" to the alien specifying, inter alia, "[t]he charges against the alien" and "[t]he time and place at which the proceedings will be held." § 1229(a)(1)(D), (G); see also Saqr v. Holder, 580 F.3d 414, 421 (6th Cir. 2009) (stating that the regulatory term "commence" and the statutory term "initiate" are not synonymous).
So, to ascertain the meaning and effect of the regulatory phrase "jurisdiction vests," it is helpful to take account of the regulatory structure for the administration of the INA that existed around the time when 8 C.F.R. § 3.14, the predecessor to Regulation 1003.14, was promulgated—and § 3.14's regulatory history. Cf. Martin v. Occupational Safety & Health Review Com'n, 499 U.S. 144, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991) ("To put this question in perspective, it is necessary to take account of the unusual regulatory structure established by the [Occupational Safety and Health] Act."); see also I.N.S. v. Nat'l Ctr. for Immigrants' Rights, Inc., 502 U.S. 183, 190-91, 112 S.Ct. 551, 116 L.Ed.2d 546 (1991) (considering, in interpreting an INS regulation, "the text of the regulation, the agency's comments when the rule was promulgated, [and] the operating instructions issued to INS personnel").
At that time, the Department of Justice ("DOJ") administered immigration laws, functioning as a traditional "unitary agency." Martin, 499 U.S. at 154, 111 S.Ct. 1171. In 1952, Congress vested in the Attorney General primary responsibility for
Shortly after the EOIR was created, 25 new regulations were proposed in 1985, 50 Fed. Reg. 51693 (Dec. 19, 1985), and finally adopted in 1987, 52 Fed. Reg. 2931 (Jan. 29, 1987). These "rules of procedure" governed all proceedings (unless otherwise stated), including deportation proceedings, before the immigration judges. 52 Fed. Reg. 2931. Among them were 8 C.F.R. § 3.14, as mentioned, the predecessor to Regulation 1003.14. Section 3.14(a), in its entirety, provided: "Jurisdiction vests and proceedings before an Immigration Judge commence when a charging document is filed with the Office of the Immigration Judge except for bond proceedings as provided in 8 CFR 3.18 and 242.2(b)." 52 Fed. Reg. 2937 (codified as 8 C.F.R. § 3.14(a)).
Specifically, the purpose of promulgating § 3.14, and amending, in conformity therewith, certain existing regulations, was to give the EOIR the ability to "ensur[e]
Importantly, the regulatory history further suggests that the phrase "jurisdiction vests ... when a charging document is filed" means that the filing event invokes the immigration judge's authority over a deportation case and concurrently delimits, to some extent, the Service's (then, the INS, and today, the ICE) authority over the same, which the Service may independently exercise before, but not after, the filing.
Thus interpreted, Regulation 1003.14(a), a procedural rule, is not a grant of authority and does not otherwise "connote subject-matter jurisdiction," see Rockwell Int'l Corp. v. United States, 549 U.S. 457, 467, 127 S.Ct. 1397, 167 L.Ed.2d 190 (2007), or speak to the immigration judges' "subject-matter jurisdiction" over removal proceedings, cf. Stern v. Marshall, 564 U.S. 462, 479-80, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011) (statutory allocation of the authority to enter final judgment between the bankruptcy court and the district court "does not implicate questions of subject matter jurisdiction." (citing 28 U.S.C. §§ 157(b)(1), (c)(1))); Bowles, 551 U.S. at 212, 127 S.Ct. 2360 ("We have repeatedly held that this statute-based filing period for civil cases is jurisdictional.... On the other hand, we have treated the rule-based time limit ... differently, stating that it may be waived because the
Moreover, a separate regulation that specifically provides for the immigration judges' authority to conduct removal proceedings suggests that § 3.14(a), and by extension its successor Regulation 1003.14(a), are not jurisdictional and do not otherwise condition the statutory grant of authority to the immigration judges. Cf. United States v. Kwai Fun Wong, ___ U.S. ___, 135 S.Ct. 1625, 1633, 191 L.Ed.2d 533 (2015) ("Whereas § 2401(b) houses the FTCA's time limitations, a different section ... confers power on federal district courts to hear FTCA claims. Nothing conditions the jurisdictional grant on the limitations periods, or otherwise links those separate provisions. Treating § 2401(b)'s time bars as jurisdictional would thus disregard the structural divide built into the statute." (emphasis added)). Under the sub-heading "authority," that regulation provides that "[i]n any removal proceeding pursuant to section 240 of the Act, the immigration judge shall have the authority to[] ... [d]etermine removability pursuant to section 240(a)(1) of the Act; to make decisions, including orders of removal as provided by section 240(c)(1)(A) of the Act." 8 C.F.R. 1240.1(a) (emphasis added). The predecessor to this regulation, 8 C.F.R. § 242.8(a),
Finally, to accept that Regulation 1003.14(a)—a rule that was not promulgated to interpret any statute—speaks to or conditions the immigration judge's subject matter jurisdiction is to say that the Attorney General is "in effect, ... telling himself what he may or may not do." See Garcia v. Lynch, 786 F.3d 789, 797 (9th Cir. 2015) (Berzon, J. concurring). But "subject matter jurisdiction" of an agency is an "external constraint" placed upon the agency, not one that is imposed or created by the agency itself. See id. ("[P]resumably, [the Attorney General] could simply change the rules if he were so inclined. That being the case, such regulations are more like a court's internal rules, such as our own standing orders, than external constraints that could properly be conceived of as jurisdictional."); see also
In sum, the Court holds that Regulation 1003.14(a) does not grant, speak to, or condition the immigration judges' "subject matter jurisdiction" (i.e., statutory authority) to conduct removal proceedings. It further holds that the IJ's removal order was not invalid or void for want of subject matter jurisdiction—because the NTA, as a charging document, omitted the hearing time.
Having addressed the question what "jurisdiction vests" means, the Court turns to Defendant's arguments premised on § 1229(a)(1) and Regulation 1003.14(a). Because the NTA omitted the hearing time, he argues, it did not comply with § 1229(a)(1), and consequently, the IJ's removal order was invalid. Mot. to Dismiss at 2 (citing Pereira, 138 S.Ct. 2105). He contends that the statutory definition, not the regulatory definition, of an NTA governs the application of Regulation 1003.14(a). Def.'s Reply at 4-5. Again because the NTA omitted the hearing time, he argues, "jurisdiction" did not vest and the 2002 removal proceeding did not commence before the IJ under Regulation 1003.14(a). Mot. to Dismiss at 3. Consequently, the IJ's removal order was illegal. Id. at 3.
The Court assumes, without deciding, for purposes of Regulation 1003.14(a), that an NTA as a charging document must comply with the statutory definition under § 1229(a). See 8 C.F.R. § 1003.15 (requiring a "notice to appear" to include all of the statutory categories of information, except the time of hearing). It nevertheless is not persuaded by Defendant's arguments.
Prior to Pereira, the Fifth Circuit held that a served NTA that omits the date and
Defendant contends that Pereira abrogated Gomez-Palacios and Mehdi. Mot. to Dismiss at 3 n.3. For several reasons, the Court disagrees. In Pereira, the Supreme Court did not have the occasion to address, nor did it address, the precise issue resolved by the Fifth Circuit decisions: whether a served NTA and a subsequently served NOH together comply with § 1229(a)(1)'s hearing time requirement. Indeed, "Pereira never received notice of the time and date of his removal hearing." Pereira, 138 S.Ct. at 2113 (emphasis added).
Second, nothing in Pereira counsels against the two-step notice procedure endorsed in Gomez-Palacios and Mehdi. Although a dialogue between the Pereira majority and dissent over complete/incomplete NTAs gives us a pause, see e.g., United States v. Sandoval-Cordero, 342 F.Supp.3d 722, 729-30 (W.D.Tex. 2018) (concluding that the Pereira Court rejected the two-step approach), read in context, the dialogue reveals no explicit or implicit rejection by the majority of the two-step procedure. In that dialogue, the Pereira majority rejected dissenting Justice Alito's argument that "§ 1229(a)(1)'s language can be understood to define what makes a notice to appear complete." Pereira, 138 S.Ct. at 2116 (citing id. at 2126-27) (italics in original)). But, that argument, as explained below, is distinct from the issue resolved by Gomez-Palacios and Mehdi.
Specifically, Justice Alito argued that the Government's interpretation in Matter of Camarillo, 25 I. & N. Dec. 644 (BIA 2011), can be squared with the text of § 1229(a)(1), which he quoted as follows: "`a written notice (in this section referred to as a `notice to appear') shall be given in person to the alien ... specifying' 10 categories of information, including the `time and place' of the removal proceeding." Pereira, 138 S.Ct. at 2126 (citing § 1229(a)(1)) (emphasis in original)). He posited that it is at least reasonable (as an alternate plausible interpretation) to read that language
Finally, though there is a dearth of appellate decisions interpreting or applying Pereira, two recent decisions, including one by the Fifth Circuit, suggest that the pre-Pereira line of cases that endorsed the two-step notice procedure survives to date. Recently, the Sixth Circuit reaffirmed its
Accordingly, bound by the Fifth Circuit precedents, the Court holds that the 2002 removal proceeding's NTA and NOH together complied with § 1229(a)(1)'s time-of-the-hearing requirement. It further holds that jurisdiction (as interpreted in Part II. A, supra) properly vested and the proceeding properly commenced under Regulation 1003.14(a) on August 3, 2002, when the NOH was served on Defendant. Consequently, the Court concludes that the 2002 removal order was not invalid because the NTA did not include a hearing time.
Defendant's § 1326 arguments are premised on his earlier argument that because the NTA failed to provide a hearing time, the IJ lacked jurisdiction, subject matter jurisdiction, and/or authority to issue the 2002 removal order, and therefore, that the removal order was a legal nullity, void, and/or void ab initio. Mot. to Dismiss at 8-10. Based on that premise, he argues that he was never "removed," and therefore the Court should dismiss the Indictment for failing to state a claim. Id. Based again on the same premise, he argues that he need not satisfy all three prongs of the three-prong tests under 8 U.S.C. § 1326(d), and in any event, he satisfies them. Id. at 9-10; Def.'s Reply at 14.
As discussed above, see Part II.A-B, the Court has rejected Defendant's underlying premise. So, the Court rejects these arguments as well. However, out an abundance of caution, the Court briefly addresses the first two prongs of the test. See United States v. Mendoza-Mata, 322 F.3d 829, 832 (5th Cir. 2003) ("If the alien fails to establish one prong of the three[-]part test, the Court need not consider the others."). To challenge to the underlying removal order, an alien-defendant must demonstrate that: "(1) [he] exhausted any administrative remedies that may have been available to seek relief against the order; (2) the [removal] proceedings at which the order was issued improperly deprived [him] of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair." 8 U.S.C. § 1326(d).
The Government points out, and Defendant does not dispute, that he did not appeal the 2002 removal order to the BIA. Rather, he affirmatively waived appeal of the order. Gov't's Resp., Ex. I. On these facts, the Court holds that he fails to satisfy the first two prongs of § 1326(d). See United States v. Zapata-Cortinas, No. SA-18-CR-00343-OLG, 2018 WL 6061076, at *11, 13 (W.D. Tex. Nov. 20, 2018) (holding that defendant failed to satisfy the first two prongs, because he voluntarily waived his right to appeal the removal order to the BIA and denying defendant's motion
For the foregoing reasons,
8 C.F.R. 242.7(a), (b) (1983) (emphasis added).
52 Fed. Reg. 2940 (codified as 8 C.F.R. § 242.7(a), (b)) (emphasis added); cf. 8 C.F.R. 242.7(a), (b) (1983), supra.
Moreover, even assuming that § 1229(a)(1)'s hearing time requirement must be met for purposes of Regulation 1003.14(a), Defendant cites no binding authority, and the Court finds none, that holds that the statutory time requirement is jurisdictional. See also Hernandez-Perez v. Whitaker, 911 F.3d 305, 313 (6th Cir. 2018) ("The statutory text does not ... denote which of the several requirements for NTAs listed in § 1229(a)(1) are jurisdictional."); cf. Rockwell Int'l Corp., 549 U.S. at 467-68, 127 S.Ct. 1397 ("we concluded... establishing the elements of an offense was not made a jurisdictional matter merely because the statute creating the cause of action was phrased as providing for `jurisdiction' over such suits." (discussing Steel Co., 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210)).
Id. at 647; see also id. at 648 (rejecting the two-step procedure).
To the extent that BIA's position and in turn, Justice Alito's, were rejected by the Pereira majority, Pereira, 138 S.Ct. at 2111-12, but the immigration judge's position on the meaning of "under section 239(a)," i.e., § 1229(a)," aligns comfortably with that of the majority (at least for § 1229(a)'s hearing time requirement), it may be said that the two-step notice process, endorsed by the immigration judge, but rejected by the BIA, is consistent with Pereira. See also Hernandez-Perez, 911 F.3d at 313-14 ("[T]he BIA's conclusion that "a two-step notice process is sufficient to meet the statutory notice requirements" is not inconsistent with the text of the INA." (discussing In re Bermudez-Cota, 27 I. & N. Dec. 441, 447 (BIA 2018) (emphasis added)).