Alderete-Lopez v. Whitiker
| Decision Date | 05 December 2018 |
| Docket Number | No. CIV 18-1114 JB\SCY,CIV 18-1114 JB\SCY |
| Parties | JOSE ALDERETE-LOPEZ, Petitioner, v. JOHN WHITIKER, ACTING (TEMPORARY) UNITED STATES ATTORNEY GENERAL; KIRSTJEN NIELSEN, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; JESSE MENDEZ, FIELD OFFICE DIRECTOR, FOR THE DISTRICT OF NEW MEXICO, Respondents. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on the Petition for Writ of Habeas Corpus and Release from Detention Pursuant to 28 U.S.C. § 2241, filed November 29, 2018 (Doc. 1)("Petition"). Petitioner Jose Alderete-Lopez, a Mexican national, currently is subject to electronic detention and is scheduled for removal from the United States of America on December 6, 2018. In the Petition, Alderete-Lopez requests the Court to: (i) "[i]ssue a Writ of Habeas Corpus requiring Respondents to release Petitioner"; (ii) "[i]ssue an injunction ordering Respondents to rescind the Final Administrative Removal Order"; (iii) expedite the "request" given Alderete-Lopez' "eminent removal"; and (iv) "[g]rant any other and further relief that this Court may deem fit and proper." Petition at 7. The Court will treat a portion of Alderete-Lopez' Petition as a request for a Temporary Restraining Order ("TRO"). The Court held a hearing on December 4, 2018. The primary issues are: (i) whether the Court has jurisdiction to consider the Petition and to grant the requested relief, and (ii) whether Alderete-Lopez is likely to succeed on the merits on his argument that, because the Notice to Appear, Form I-863 (dated June 8, 2011), filed November 29, 2018 (Doc. 1-1), lacked removal hearing date and time information, the immigration court did not have jurisdiction to issue a final removal order. The Court concludes that it lacks jurisdiction to review Alderete-Lopez' claim and to grant the requested relief. The Court further concludes that, if it had jurisdiction in this matter -- which it does not -- it would nevertheless deny the Petition's request for injunctive relief, because Alderete-Lopez has not demonstrated to the Court's satisfaction that he is likely to succeed on the merits of his challenge to his removal order's validity. Accordingly, the Court will dismiss the Petition without prejudice.
The Court takes its facts from the Petition and the Memorandum of Law in Support of Petition for Writ of Habeas Corpus and Release from Detention Pursuant 28 U.S.C. § 2241, filed November 29, 2018 (Doc. 1-1)("Memo."). The Court does not set forth these facts as findings or the truth. The Court recognizes that the Petition and Memo. contain largely Alderete-Lopez' version of events and that, although the Respondents have made representations in this matter, see Respondents' Motion to Dismiss Petition for Writ of Habeas Corpus for Lack of Subject Matter Jurisdiction, filed December 3, 2016 (Doc. 6)("Response"), the Court has not relied on the Response for its facts, given the time restraints that Alderete-Lopez' forthcoming removal imposes.
Form I-863 at 1 (emphasis added). The NTA includes a Certificate of Service, which indicates that DHS Border Patrol Agent Jaime Armendariz served the NTA on Alderete-Lopez, that Armendariz provided oral notice "of the time and place of his or her hearing and of the consequences of failure to appear" to Alderete-Lopez in Spanish, and that Alderete-Lopez "refused to sign" the certificate. Form I-863 at 2.
In February 2017, an immigration judge ordered Alderete-Lopez' removal to Mexico. Petition ¶ 13, at 4. Alderete-Lopez appealed to the Board of Immigration Appeals ("BIA"),4 which sustained the Immigration judge's removal order. See Petition ¶ 14, at 4. In December, 2017, Alderete-Lopez filed a motion to reconsider "and was placed on electronic monitoring." Petition¶ 15, at 4. On September 11, 2018, the BIA denied Alderete-Lopez' Motion to Reconsider. See Petition ¶ 14, at 4. On November 9, 2018, DHS mailed to Rosa Lopez De Alderete a Notice of Obligor to Deliver Alien which demands that Lopez De Alderete deliver Jose Alderete-Lopez to the United States Immigration and Customs Enforcement Albuquerque Sub Office at 9:00 a.m. on December 6, 2018, for removal. See Notice to Obligor to Deliver Alien at 1, filed November 29, 2018 (Doc. 1-1).
On November 29, 2018, Alderete-Lopez' filed the Petition. See Petition at 1. In the Petition, Alderete-Lopez alleges two violations of the Fifth Amendment to the Constitution of the United States: (i) that the Final Administrative Removal Order violates "Fundamental Due Process," because the immigration judge lacked subject matter jurisdiction to issue the removal order, Petition ¶ 24, at 5, and (ii) that Alderete-Lopez' "continued detention" violates his right to "substantive due process," Petition ¶ 31, at 6. Regarding the Final Administrative Removal Order, Alderete-Lopez argues that, because the NTA "lacked a date and time, it was invalid and failed to vest jurisdiction in the immigration court that ordered him removed." Petition ¶ 24, at 5. As authority for this assertion, Alderete-Lopez quotes from the Supreme Court of the United State's June 21, 2018, decision in Pereira v. Sessions, 138 S. Ct. 2105 (2018): "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),5' and so does not trigger the stop-time rule.6" Petition ¶ 23, at 5 (quoting Pereira v. Sessions, 138 S. Ct. at 2113-14). Alderete-Lopez further contends that his detention is predicated on the allegedly unlawful removal proceedings that the NTA initiated. See Petition ¶ 33, at 6.
In his Memo., Alderete-Lopez avers that jurisdiction vests with the immigration court only when DHS files a proper NTA, i.e., an NTA that includes a date and time to appear before the tribunal. See Memo. at 2 (citing 8 C.F.R. § 1003.14 (a)). Moreover, according to Alderete-Lopez, 8 U.S.C. § 1299(a) "makes clear" that an NTA must include "the time and place of the hearing." Memo. at 3 (citing 8 U.S.C. § 1299(a) (). Hence, according to Alderete-Lopez, Pereira v. Sessions stands for a pronouncement broader than holding an NTA deficient only for cancellation-of-removal purposes:
The statutory text plainly requires inclusion of the "time and place at which proceedings will be held," and, accordingly, an NTA without this information is not just defective -- it is, quite simply, not a sufficiently legal Notice to Appear. Because it omits the time and place of proceedings, the charging document in this case is, per Pereira, not a Notice to Appear.
Memo. at 3 (citing 8 U.S.C. § 1299(a)). Alderete-Lopez concludes that, in this case, "removal proceedings were thus not commenced, and the Immigrations Court's jurisdiction did not vest, upon [the NTA's] filing." Memo. at 3. Although Alderete-Lopez concedes that the specific issue in Pereira v. Sessions was whether an NTA without time and-place information triggers § 1229(a)'s stop-time rule, the Supreme Court's use of the words "integral" and "essential" to describe the NTA's time-and-place information demonstrate that, in reaching its holding, the Supreme Court necessarily concluded that any NTA lacking such information, no matter the context, is an invalid NTA. Memo. at 6.
Memo. at 7 (citing Pereira v. Sessions, 138 S. Ct. at 2113-14, 2116-17). Moreover, Alderete-Lopez avers that an immigration court lacks statutory authority to issue NTAs, which, pursuant to 8 C.F.R. 239.1(a), only DHS can issue. See Memo. at 7 (citing 8 C.F.R. 239.1(a)).
Alderete-Lopez adds that the BIA's decision to "hem in" Pereira v. Sessions to the stop-time rule and...
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