United States v. Hernandez-Perdomo

Citation948 F.3d 807
Decision Date23 January 2020
Docket NumberNo. 19-1964, No. 19-2113,19-1964
Parties UNITED STATES of America, Plaintiff-Appellee, v. Eleazar HERNANDEZ-PERDOMO, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Ismael Rangel-Rodriguez Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Corey B. Rubenstein, Attorney, Melody Lake Wells, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee United States.

John F. Murphy, Sergio F. Rodriguez, William Banks Hardwicke, Attorneys, Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant Eleazar Hernandez-Perdomo.

Melody Lake Wells, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee United States.

John F. Murphy, Attorney, Amanda Gabriella Penabad, Attorney, Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant Ismael Rangel-Rodriguez.

Before Rovner, Brennan, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Ismael Rangel-Rodriguez and Eleazar Hernandez-Perdomo are both Mexican citizens who have never been lawfully admitted to the United States. Several years ago, immigration authorities served both of them with Notices to Appear ("NTA") for removal proceedings. These NTAs—like many—were defective because they did not list a date or time for an initial removal hearing. For different reasons, Rangel and Hernandez were not present at their respective removal hearings, and the immigration judges ordered them removed in absentia . United States Immigration and Customs Enforcement ("ICE") eventually enforced these orders and removed both men to Mexico, but they each illegally returned to the United States and were indicted for illegal reentry in violation of 8 U.S.C. § 1326(a). In light of the Supreme Court’s decision in Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), they moved to dismiss their respective indictments by collaterally attacking their underlying removal orders under 8 U.S.C. § 1326(d) based on the defective NTAs. The district courts denied their motions, and each defendant entered a conditional plea of guilty to the illegal reentry charge and reserved his right to appeal the denial of the motion to dismiss the indictment. We have consolidated the cases for decision.

We conclude that Rangel and Hernandez have failed to demonstrate that they satisfy any of the requirements set out in § 1326(d). We therefore affirm the judgments.

I. Background
A. Ismael Rangel-Rodriguez

In November 2010, police arrested Rangel for driving on a suspended license and several other offenses. The government served him that same day with an NTA announcing removal proceedings. This NTA ordered Rangel to appear before an immigration judge on "a date to be set at a time to be set." Rangel ultimately learned the date and time of his upcoming hearings, though, because he appeared at three hearings via video conference in late winter and early spring of 2011, while he was in ICE custody. Around March of 2011, Rangel was released on bond. In January of 2012, however, Rangel was arrested for driving under the influence and taken into custody. His next hearing took place on February 22, 2012. Because Rangel remained in state custody, he did not attend this hearing and the immigration judge entered an order of removal in absentia . The record does not reveal whether Rangel ever knew of this particular hearing date.

On September 5, 2013, following a conviction on his DUI charge and a year in state prison, Rangel was released to ICE custody. The next day, an ICE officer wrote in Rangel’s alien-registration file that Rangel did not wish to reopen his case. Although the alien-registration file entry states that Rangel received a "free legal aid list," the record does not reveal the extent to which Rangel was informed of his right to reopen. ICE removed Rangel from the United States on September 24, 2013, and Rangel reentered two days later. On October 2, ICE reinstated Rangel’s removal order and removed him from the United States a second time on March 29, 2014.

At some point following his second removal, Rangel reentered the United States a third time. Chicago Police arrested him in August of 2018, and a grand jury then indicted him on one count of illegal reentry under 8 U.S.C. § 1326(a). Rangel filed a motion to dismiss the indictment, which the district court denied. Following Rangel’s entry of a conditional plea of guilty, the district court sentenced Rangel to 23 months’ imprisonment.

B. Eleazar Hernandez-Perdomo

Hernandez tells a similar story. In 2010, ICE took him into custody and personally served him with an NTA that, like Rangel’s, omitted the date and time of his first hearing before an immigration judge. This NTA correctly reflected Hernandez’s address at that time—on Sheridan Road in Highwood, Illinois.

Later that same day, Hernandez was released from ICE custody on his own recognizance. His Order of Release directed him to report in person to an immigration officer on September 7, 2010. The Order of Release further instructed: "You must not change your place of residence without first securing written permission from the immigration officer listed above."

On August 6, 2010, the Executive Office for Immigration Review ("EOIR") sent to Hernandez’s Sheridan Road address a Notice of Hearing in Removal Proceedings to remedy the lack of date and time information in the initial NTA. This Notice set his hearing for January 3, 2012. Hernandez, however, never received this Notice because he had moved to a new apartment. Consequently, the Notice was returned to EOIR as undeliverable. Hernandez asserts that, on September 7, 2010, he reported to the immigration officer as required, and at that time he completed and returned to the officer a change-of-address form identifying his new address on Onwentsia Avenue in Highland Park, Illinois.

On January 27, 2011, the EOIR sent Hernandez another Notice of Hearing, this one moving up proceedings by ten months, to March 2, 2011. Despite Hernandez’s claimed submission of his change-of-address form, the EOIR sent this Notice of Hearing to his outdated, Sheridan Road address. As with the prior Notice, it was returned as undeliverable.

Because he was unaware of the March 2 hearing, Hernandez did not appear. The immigration judge conducted the removal hearing in absentia and ordered him removed. Three months later, ICE agents arrested Hernandez at his Onwentsia address. ICE removed him eight days after his arrest.

As with Rangel, Hernandez’s alien-registration file entry states that Hernandez received a "free legal aid list," but the record does not reveal the extent to which Hernandez was informed of his right to reopen. Unlike in Rangel’s case, the alien-registration file does not comment on Hernandez’s desire, or lack thereof, to reopen the proceedings against him.

In 2018, Hernandez was transferred back into ICE custody after being identified during a traffic stop. A grand jury indicted him on one count of illegal reentry. Like Rangel, Hernandez filed a motion to dismiss the indictment, which the district court denied. Hernandez entered a conditional plea of guilty, and the district court sentenced Hernandez to time served plus one year of supervised release.

II. Discussion

We review de novo a district court’s denial of a defendant’s motion to dismiss an indictment. United States v. Arita-Campos , 607 F.3d 487, 491 (7th Cir. 2010). As Rangel’s and Hernandez’s appeals raise identical legal issues challenging the district courts’ decisions to deny their motions to dismiss, we analyze the arguments they submit together.

8 U.S.C. § 1326 makes it a crime for a removed noncitizen to reenter, or attempt to reenter, the United States without the consent of the Attorney General. In United States v. Mendoza-Lopez , 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), the Supreme Court held that a defendant charged under this statute has a due process right to challenge the underlying order of removal. In 1996, Congress amended the statute to codify the holding of Mendoza-Lopez by adding subsection (d), which imposes three requirements on an alien seeking to challenge the validity of his or her underlying removal order. The alien must have "exhausted any administrative remedies that may have been available to seek relief against the order," the removal proceedings must have "improperly deprived the alien of the opportunity for judicial review," and the entry of the removal order must be "fundamentally unfair." 8 U.S.C. § 1326(d)(1)(3). The alien bears the burden of proving the underlying removal order was defective. United States v. Baptist , 759 F.3d 690, 695 (7th Cir. 2014). Although we have never expressly stated that an alien must satisfy all three elements of § 1326(d) to collaterally attack his or her removal order, we have implied that this is so. United States v. Alegria-Saldana , 750 F.3d 638, 641 (7th Cir. 2014). We need not decide this issue today, though, because Rangel and Hernandez have failed to satisfy any of the three elements.

Rangel and Hernandez base their challenges on the Supreme Court’s decision in Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). The Pereira Court addressed the "narrow question" whether an NTA that omits the time or place of an alien’s removal hearing triggers the stop-time rule of the Illegal Immigration Reform and Immigrant Responsibility Act, thus terminating the period of continuous physical presence in the United States necessary for an alien to be eligible for discretionary cancellation of removal. Id. at 2110. The Court ruled that it did not because the missing information prevents an NTA from satisfying the statutory definition in 8 U.S.C. § 1229(a). Id. at 2113–14. Like many other litigants, Rangel and Hernandez both argued at the district court that a deficient NTA deprived an immigration court of jurisdiction, and thus their removal enters were void...

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7 cases
  • United States v. Manriquez-Alvarado
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • March 24, 2020
    ...8 U.S.C. § 1326(d). This statute requires the alien to show all three; one or two won’t suffice. See United States v. Hernandez-Perdomo , 948 F.3d 807, 810–11 (7th Cir. 2020) ; United States v. Watkins , 880 F.3d 1221, 1224 (11th Cir. 2018) ; United States v. Estrada , 876 F.3d 885, 887 (6t......
  • United States v. Lopez-Segura
    • United States
    • U.S. District Court — Western District of Oklahoma
    • September 7, 2022
    ... ... Appear that is defective under Pereira cannot be ... cured by a subsequent Notice of Hearing. The law does not ... permit multiple documents to collectively satisfy the ... requirements of a Notice to Appear.”) ... [10] United States v ... Hernandez-Perdomo, 948 F.3d 807, 811 (7th Cir ... 2020) ... [11] 8 U.S.C. § ... 1229a(c)(7)(C) ... [12] 8 U.S.C § ... 1229a(b)(5)(C)(ii) ... [13] See United States v ... Alegria-Saldana, 750 F.3d 638, 641 (7th Cir. 2014) ... (“[A]liens are presumed capable of ... ...
  • United States v. Friedman, No. 19-2004
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • August 21, 2020
    ...his due process right to a fair trial. We review de novo the denial of a motion to dismiss an indictment, United States v. Hernandez-Perdomo , 948 F.3d 807, 810 (7th Cir. 2020), and the court's factual findings for clear error, United States v. Boyce , 742 F.3d 792, 794 (7th Cir. 2014). Bec......
  • United States v. Calan-Montiel
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 13, 2021
    ...to satisfy § 1326(d), even if the agency erred in failing to send a proper notice of the hearing's date. See United States v. Hernandez-Perdomo , 948 F.3d 807 (7th Cir. 2020). AFFIRMED ...
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2 books & journal articles
  • Weekly Case Digests September 20, 2021 September 24, 2021.
    • United States
    • Wisconsin Law Journal No. 2021, March 2021
    • September 24, 2021
    ...1326(d), even if the agency erred in failing to send a proper notice of the hearing's date. See United States v. Hernandez-Perdomo, 948 F.3d 807 (7th Cir. Full Text [divider] 7th Circuit Court of Appeals Case Name: Sally Gaetjens v. City of Loves Park, et al., Case No.: 20-1295 Officials: K......
  • Immigration Removal Order.
    • United States
    • Wisconsin Law Journal No. 2021, March 2021
    • September 19, 2021
    ...1326(d), even if the agency erred in failing to send a proper notice of the hearing's date. See United States v. Hernandez-Perdomo, 948 F.3d 807 (7th Cir. Full Text [box type="shadow" ] Derek A Hawkins is Corporate Counsel, at Salesforce.[/box] Copyright {c} 2021 BridgeTower Media. All Righ......

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